Appeal from City Court of New York, Special Term.

Action by John J. and Adelaide Hughes against Joseph M. Eccles. From an order granting plaintiffs' motion for judgment on the pleadings, defendant appeals. Reversed, and demurrer to complaint sustained, with leave to amend.

Argued October term, 1916, before GUY, BIJUR, and SHEARN, JJ. William Klein, of New York City (William Klein and Jacob Klein, both of New York City, of counsel), for appellant.

Melvin H. Dalberg, of New York City (Melvin H. Dalberg and Henry A. Uterhart, both of New York City, of counsel), for respond

ents.

SHEARN, J. In an action to recover damages for alleged violation of an agreement, an examination of the complaint discloses the following allegations: That on or about November 16, 1915, the parties entered into an agreement, whereby defendant agreed to pay the plaintiffs $550 "for services performed in behalf of said defendant and others, and in further consideration of services agreed to be performed by the plaintiffs in behalf of said defendant at a weekly compensation of $550"; that "plaintiffs fully performed the services as aforesaid, during the week of November 8 to 14, 1915, inclusive, and were ready and willing to continue to perform such services under the agreement herein alleged"; and "that the said defendant failed to every respect to comply with the terms of said agreement; and that no part of said $550 for said services rendered has been paid, although the same has been duly demanded."

This complaint consists of a series of conclusions, instead of a statement of facts. What the "services," either performed or to be performed, consisted of, what the plaintiffs did, what the plaintiffs were to do, and what the alleged full performance consisted of, are all left to conjecture. It would have been very simple to have stated the facts. It is only by considering facts alleged that the court can determine whether a complaint states a cause of action. Such a determination cannot be successfully avoided by merely pleading conclusions. The defendant having properly demurred, the order granting plaintiff's motion for judgment on the pleadings is reversed, with $10 costs and disbursements, and demurrer sustained, with $10 costs, with leave to plaintiffs to file an amended complaint within six days after entry and notice thereof of this order in the City Court and upon payment of said costs.

BIJUR, J., concurring in the result. GUY, J., concurs.

DANERHIRSCH et al. v. GREAT EASTERN CASUALTY CO. (Supreme Court, Appellate Term, First Department.

October 17, 1916.)

1. INSURANCE 635-ACTIONS-PLEADING-“EVIDENTIARY FACTS."

In an action on a policy insuring against loss from burglary "provided there shall be visible marks of force and violence in forcing entry or exit," insured must plead such marks, since facts essential to recovery are not "evidentiary facts," but must be pleaded.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1599-1602; Dec. Dig. 635.

For other definitions, see Words and Phrases, Second Series, Evidentiary Fact.]

2. PLEADING 11-"EVIDENTIARY FACTS."

"Evidentiary facts," the pleading of which is dispensed with, are not those essential to the existence of a cause of action.

[Ed. Note. For other cases, see Pleading, Cent. Dig. § 31; Dec. Dig. 11.]

Appeal from City Court of New York, Special Term.

Action by Joseph Danerhirsch and another against the Great Eastern Casualty Company. From an order denying motion for judgment on the pleadings, defendant appeals. Reversed, and motion granted. Argued October term, 1916, 1916, before GUY, BIJUR, and SHEARN, JJ.

Joseph L. Prager, of New York City, for appellant.

Strasbourger & Schallek, of New York City (Samuel Strasbourger and Max L. Schallek, both of New York City, of counsel), for respondents.

SHEARN, J. [1, 2] This action is brought to recover under a policy insuring against loss from burglary in plaintiff's premises "provided there shall be visible marks upon the premises of force and violence in forcing entry or exit." The complaint alleges that the premises were broken into and "burglarized," but fails to allege that there were any visible marks upon the premises of force and violence in forcing entry or exit, without proof of which there can be. no recovery. Rosenthal v. American Bonding Co., 207 N. Y. 162, 107 N. E. 716, 46 L. R. A. (N. S.) 561. Therefore the complaint, to which the contract of insurance is annexed, fails to disclose a cause of action. Facts which are absolutely essential to a recovery must be pleaded. They are not included in the classification of "evidentiary facts" merely because they have to be proved. "Evidentiary facts," the pleading of which is dispensed with, are not those essential to the existence of a cause of action. It might as well be claimed that the allegation of a loss is evidentiary.

The order is reversed, with $10 costs and disbursements, and the motion granted, with $10 costs, with leave to the plaintiff to amend the complaint within six days on payment of costs. All concur.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(96 Misc. Rep. 594)

TERRKY v. TERRKY.

(Supreme Court, Special Term, Kings County.

1. MARRIAGE

September 27, 1916.)

58(1)-INFANTS-ANNULMENT-ELECTION.

A female, married under the age of 18, has the right, on attaining that age, to confirm or to disaffirm the marriage and sue for annulment, but, having once elected, cannot change her decision.

[Ed. Note.-For other cases, see Marriage, Cent. Dig. §§ 115, 118; Dec. Dig. 58(1).] 2. MARRIAGE

58(1)-INFANTS-ELECTION-WHAT CONSTITUTES. Where a female, married under the age of 18, sued for separation before attaining that age, but took judgment in such suit after becoming 18, which judgment recited a valid marriage she could not then sue for annulment; her election occurring while she had the right to elect.

[Ed. Note.-For other cases, see Marriage, Cent. Dig. §§ 115, 118; Dec. Dig. 58(1).]

3. JUDGMENT 666-PARTIES CONCLUDED-JURISDICTION.

A judgment is a binding adjudication against the party who obtained it, even though void as to the other for lack of jurisdiction.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1180; Dec. Dig. 666.]

Since infants may bind themselves by election, an infant, properly represented by guardian, is estopped by a judgment obtained in her action.

[Ed. Note. For other cases, see Infants, Cent. Dig. § 321; Dec. Dig. 113.]

Suit by Rose Terrky, an infant, by her guardian ad item, Fanny Wechsler, against Tully S. Terrky. Complaint dismissed upon the merits.

Israel M. Lerner, of New York City, for plaintiff.

CROPSEY, J. This is an undefended action to annul a marriage, upon the ground of plaintiff's nonage. She was under 18 years of age at the time of the marriage and has not lived with the defendant since she became 18. Before bringing this action, however, she, through her guardian ad litem, brought an action against the defendant for a separation; and the question here is whether the bringing of that action and the prosecution of it to judgment prevents the plaintiff from obtaining the relief here sought.

On the hearing it developed that the action for a separation had been tried two years ago. The judgment roll in that action was not available on the hearing, but it was submitted to the court later. It appears that the separation action was begun before the plaintiff became 18, but that it was not tried and the judgment entered until after she had arrived at that age. It further appears that she was a witness on her own behalf and that the defendant since the entry of that judgment has been paying the alimony for which provision was therein made. The plaintiff is now 21 years of age.

[1] When the plaintiff became 18, she had the right of election, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

either to confirm the marriage or to disaffirm it. She could then determine to treat it either as a valid, binding contract and obligation, or as a voidable contract and to bring an action for its annulment. But having once made the election, having acted thereon, and having taken the benefits thereof, she cannot thereafter change her decision and seek to make a contrary election. Herrman v. Herrman, 93 Misc. Rep. 315, 156 N. Y. Supp. 688, 690.

[2] Here the plaintiff, after becoming 18, prosecuted to judgment her action for a separation. That judgment found that there was a valid marriage existing between the plaintiff and defendant, as contended by her, and it directed the defendant to provide support for his wife, the plaintiff; and this he has done. The plaintiff cannot now assert that her marriage was not valid. Its validity has been judicially declared, and at a time, too, after the plaintiff had the right of election. She cannot now disaffirm the contract. Goodwin v. Goodwin, 158 App. Div. 171, 174, 175, 142 N. Y. Supp. 1102. The case cited was one in which the obtaining of a judgment of separation was held to be a bar to an action subsequently brought to annul the marriage; and the general rule is that, where the remedies are inconsistent and a choice is once made, the right to follow the other is forever gone. Conrow v. Little, 115 N. Y. 387, 393, 22 N. E. 346, 5 L. R. A. 693; Terry v. Munger, 121 N. Y. 161, 167, 24 N. E. 272, 8 L. R. A. 216, 18 Am. St. Rep. 803; Droege v. Ahrens, etc., Co., 163 N. Y. 466, 470, 57 N. E. 747; 13 L. R. A. note, 472, 473.

[3] A judgment is a binding adjudication against the party who obtained it, even though as to the other party it may be void for lack of jurisdiction. Starbuck v. Starbuck, 173 N. Y. 503, 66 N. E. 193, 93 Am. St. Rep. 631; Matter of Swales, 60 App. Div. 599, 70 N. Y. Supp. 220, affirmed 172 N. Y. 651, 65 N. E. 1122; 60 L. R. A. note, pp. 301, 304; 51 L. R. A. (N. S.) note, pp. 535, 536.

[4] Nor does the fact that the plaintiff was an infant at the time of prosecuting to judgment the separation action affect the question. Infants may bind themselves by an election. Bigelow on Estoppel, p. 735, and cases cited; 3 Bacon's Abr., title Election (E) 315. So an infant, properly represented by a guardian, is estopped by a judgment obtained in the action. Bigelow on Estoppel, p. 132, and cases cited.

It follows that the complaint must be dismissed upon the merits.

HARRISON v. REPETTI.

(Supreme Court, Appellate Term, First Department. October 17, 1916.) 433(1)-STOCKHOLDERS-AUTHORITY TO EMPLOY MANAGER

1. CORPORATIONS

-QUESTION FOR JURY.

In an action against a corporation for salary as general manager at an increased weekly salary under employment by two stockholders owning substantially all the capital stock and in control of the business, heid, on the evidence, that their authority to employ the general manager was for the jury.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1706, 1738, 1744; Dec. Dig. 433 (1).]

2. CORPORATIONS 433(2)—AUTHORITY OF STOCKHOLDERS-EMPLOYMENT OF MANAGER-RATIFICATION-QUESTION FOR JURY.

In such action, evidence held to make the corporation's ratification of the employment at an increased salary a question for the jury.

[Ed. Note. For other cases, see Corporations, Cent. Dig. § 1719; Dec. Dig. 433(2).]

3. APPEAL AND ERROR 1176(5)—QUESTIONS OF FACT-VERDICT-REINSTATEMENT.

Where the evidence in an action for salary as general manager of a corporation amply supported a verdict in favor of the plaintiff, the order setting aside the verdict would be reversed and the verdict reinstated. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4593, 4594; Dec. Dig. 1176(5).]

Bijur, J., dissenting.

Appeal from City Court of New York, Special Term.

Action by Lewis Z. Harrison against Repetti. From an order setting aside a verdict in his favor and granting a new trial, plaintiff appeals. Order reversed, and verdict reinstated.

Argued October term, 1916, before GUY, BIJUR, and SHEARN, JJ. Greene, Hurd & Stowell, of New York City (George F. Hurd, of New York City, and Daniel S. Murphy, of counsel), for appellant. Harry D. Nims, of New York City, for respondent.

SHEARN, J. [1] Where one owning substantially all of the capital stock of a corporation makes a contract of employment for the corporation, which is partially performed by both parties, slight evidence of authority to act for the corporation ought to be required. In this case there is no denial in the form of testimony that Hoyt and Reis, owners of substantially all of the defendant's capital stock and in control of its business, employed the plaintiff, who had theretofore been general manager of the defendant at a salary of $40 a week, to continue as general manager for one year at $60 a week. Neither is it disputed that plaintiff performed the duties of general manager from the date of the hiring on March 13, 1914, until April 4, 1914, and was paid by the corporation the agreed salary of $60 a week. From the acceptance of the plaintiff's services and the payment of the agreed and higher rate of compensation the jury was clearly warranted in finding that Hoyt and Reis had been authorized by the corporation to em

>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes