
    Fred J. Fuller, Respondent, v. The Queens Land and Title Co., Appellant.
    (Supreme Court, Appellate Term, First Department,
    March, 1913.)
    Counterclaim—pleading — action on promissory note — insufficiency of.
    In an action on a promissory note against the maker allegations of plaintiff’s breach of an agreement to operate a certain hotel rented of defendant for a term at the agreed rental of ten per cent, of all gross receipts by plaintiff, pleaded as a counterclaim, .states a cause of action, and a judgment entered on a verdict directed for plaintiff on the ground that the counterclaim is insufficient in law upon its face will he reversed.
    Appeal by defendant from a judgment of the City Court of the city of New York, entered in favor of the plaintiff upon a verdict directed by the court.
    Arthur B. La Far, for appellant.
    Stephen M. Hoye (Albert E. Richardson, of counsel), for respondent.
   Seabury, J.

The complaint sets forth a cause of action upon two promissory notes. The answer pleaded a counte r-claim. Upon the trial the court held that the counterclaim was insufficient in law on the face thereof, and directed a verdict for the plaintiff. The counterclaim alleged that plaintiff and defendant entered into an agreement, whereby plaintiff rented a certain hotel to the defendant for the term commencing Hay 15, 1912, and ending November 1, .1912, and that the plaintiff agreed to operate said hotel during that term “ at the agreed rental of ten per cent of all gross receipts received by said plaintiff in the operation of said hotel.” The counterclaim also set forth the breach of this agreement, and that, by reason of the breach, the defendant sustained damage. These allegations state a cause of action. It is sought to defend the ruling made below on the ground that the counterclaim contained no allegation that gross receipts were realized from the operation of the hotel. How could there be any receipts if the plaintiff refused, in violation, of his contract, to operate the hotel? It was this refusal on the part of the plaintiff which constitúted a breach of contract on his part. For this breach the defendant was entitled to recover damages. Whether or not the defendant could have established his damage by competent proof, we are not now in a position to determine. We cannot determine from an inspection of the pleadings that the defendant was unable to prove the damages resulting from the plaintiff’s breach of contract. The counterclaim stated a cause of action, and should not have been summarily disposed of by a motion upon the pleadings.

Gerard and Bijur, JJ., concur.

Judgment reversed, and new trial ordered, with costs to appellant to abide event.  