
    John Johnson Construction Co., Appellant, v. City of Jamestown, Respondent.
   Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to the defendant to plead over within twenty days, upon payment of the costs of the motion and of this appeal. Held, that the statement in the complaint, “ That such agreement on the part of the city was made and accepted by such commission for the propose of providing against delays in the work of any contractor undertaking such improvement and for his benefit,” was a statement of fact or a conclusion of fact and not a conclusion of law, and as such was admitted by the demurrer. (Spies v. Munroe, 35 App. Div. 527; Rochester R. Co. v. Robinson, 133 N. Y. 242; Sultan of Turkey v. Tiryakian, 213 id. 429.) The questions of whether or not the agreement made between the city and the State was made for the benefit of the plaintiff, and if so made, whether or not it entitled the plaintiff to recover, should be determined upon the trial. All concur.  