
    George Holt Fraser, Doing Business under the Name and Style of “ Kent Mill Company,” Respondent, v. The Staso Mills, Appellant.
    Second Department,
    March 17, 1911.
    Pleading — complaint in action for goods sold — failure to state cause of action.
    A complaint which alleges that the plaintiff sold a mill to the S. Co., which paid a certain sum and agreed to return the mill and accessories to the plaintiff within ten days after the same should he set up, or in case of failure so to return the same to pay a further sum, and that the S. Co. transferred all its assets to the defendant, which, in consideration thereof, assumed to pay all . the liabilities of the S. Co , including that of the plaintiff, fails to state a cause of action in that it does not show that the S. Co. had set up the mill, or had unreasonably failed or neglected to do so, or that the defendant had failed to pay the obligation of the S. Co. to the plaintiff.
    Appeal by the defendant,' The Staso Mills, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 7th day of October, 1910, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendant’s demurrer to the complaint.
    
      Charles H. Ayres and L. J. Luce, for the appellant.
    
      Ward W. Pickard, for the respondent.
   Hibschbebg, J.:

I think the demurrer should have been sustained on the ground that the complaint does not state facts sufficient to constitute a cause of action. It alleges that on or about the 12th day of October, 1905, the plaintiff sold and delivered to the Staso Company a stone crusher known as a Kent mill, with other parts, for which the company paid the plaintiff the sum of $500, “ and agreed to return said mill and accessories to plaintiff within ten days after the same should be set up, or in case of failure so to return the same, to pay him the further sum of Two thousand Dollars ($2,000) therefor.” The complaint further states that the Staso Company transferred and conveyed to the defendant the Staso Mills all its assets, and in consideration therefor defendant assumed and agreed to pay all the liabilities of said The Staso Company, including the liability of said The Staso Company to this plaintiff hereinabove set forth.”

The complaint does not state either that the Staso Company had set up the mill or had unreasonably failed or neglected to do so, and while it states that the defendant had assumed to pay the obligations of the Staso Company, there is no allegation that it has failed to do so, or that it has failed or neglected to pay the $2,000 to the plaintiff. The learned counsel for the respondent claims in his brief that it was the intention of the plaintiff to allege that no part of the $2,000 has been paid, and in effect that the failure to set up the mill is a reasonable inference, but the requirements of the Code of Civil Procedure necessitate a “ statement of the facts ” constituting a cause of action, so tliey cannot be deduced by mere inference. (§ 481, subd. 2.)

It follows that the interlocutory judgment should be reversed, with costs, and the demurrer -sustained, with costs, but with leave to the plaintiff to serve an amended complaint on payment within twenty days.

Jbnks, P. J., Bubb, Thomas and High, JJ., concurred.

Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to serve an amended complaint on payment within twenty days.  