#### Francis I. Vanderbeek et al., Respondents, *v.*Arthur E. Hemmel, Appellant.

Supreme Court, Appellate Term,

March, 1899.)

Action upon orders on a fund — Failure of complaint to allege conditions precedent.

Where the owner of a building accepts orders drawn upon him by his contractor and made payable to the contractor out of his first payment “ When the second tier of beams is set ”, a complaint against the owner by third parties, who sold the contractor lumber on the faith of the orders, is insufficient on its face where it merely alleges that the second tier of beams was set and that the debt for lumber ip unpaid, and fails to allege that the second tier was set by the contractor, or pursuant to his contract, and nowhere alleges that the first payment ever became due to him.

(Vanderbeek v. Hemmel, 25 Misc. Rep. 299, reversed.)

Appeal by the defendant from a judgment of the General Term of the City Court, affirming a judgment of the City Court entered upon the verdict of a jury.

L. *&*A. U. Zinke, for appellant.

W. C. Sherwood, for respondents.

Freedman, P. J.

When this case was called for trial and after a jury had been impanelled and sworn, and before any testimony was given, the defendant’s counsel made a motion to dismiss the complaint upon the grounds that it did not state facts sufficient to constitute a cause of action. ■ This motion was denied and an exception taken. The plaintiffs then introduced their evidence and rested their case. The defendant offered no evidence and the jury rendered a verdict for the plaintiffs, upon which judgment was duly entered. The defendant appealed therefrom to the General Term, which affirmed the judgment, and from the judgment of affirmance an appeal was taken to this court.

The only question presented by this appeal is whether the complaint states facts sufficient to constitute a cause of action. The complaint alleges that in consideration of two certain written *715orders upon, and acceptances by the defendant, the plaintiffs sold to Emanuel Eapp, certain lumber of the value of $323. It then sets forth said orders and acceptances at length. Each of the orders was drawn by Emanuel Eapp upon the defendant and accepted by the latter, and each was made payable out of the first payment due to Eapp, “ When the second tier of beams is set,” and made chargeable against his account. Upon the facts pleaded the implication is apparent that Eapp was to perform certain work for the defendant in the erection of a building and that he was to be paid the sums represented by the orders upon the completion of his contract up to the point of setting the second tier of beams.

The complaint then alleges, that the second tier of beams was set, and that no part of the said $323 has been paid, although demanded. But the complaint fails to allege that the second tier of beams was set by Eapp or pursuant to his contract, and there is no allegation or averment anywhere in substance, or to the effect, that the first payment ever became due to Eapp. For all that appears there might have been an abandonment of the contract by Eapp before' he earned the first payment, and the second set of tiers of beams might have been set by another contractor for defendant’s account, or by the defendant himself.

For the reasons stated the complaint is clearly insufficient. The denial of the motion to dismiss the complaint was, therefore, erroneous.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

MacLean and Leventritt, JJ., concur.

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