
    Clinton G. Eldridge, Plaintiff, v. Sarah G. Friedman, Defendant. Ellis E. Scott, Plaintiff, v. Sarah G. Friedman, Defendant.
    Supreme Court, Erie County,
    December 9, 1929.
    
      Ruslander & Anderson [Frank S. Anderson of counsel], for the plaintiffs.
    
      Robert R. Lawson [Irving I. Steinberg of counsel], for the defendant.
   Harris, J.

A motion has been made by the defendant in each of the above actions, under subdivision 5 of rule 106 of the Rules of Civil Practice, for dismissal of the complaint.

Such motion should be denied in each case, because either the construction of the contract given by the plaintiff in the complaint is the proper one or the verbiage of the contract is ambiguous. As the complaint alleges payment in accordance with the plaintiff’s construction of the contract, to plead in accordance with the terms of the statute (Rules Civ. Prac. rule 92) “ duly performed ” would be surplusage. The plaintiff may have one bill of ten dollars costs on both of these motions.  