Opinion
March 16, 1942.
Order denying defendant's motion to dismiss the plaintiff's complaint for failure to state a cause of action reversed on the law, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. The complaint correctly pleads a cause of action based upon the breach by the defendant of a written contract of employment. However, the plaintiff annexed the contract to his complaint. The contract fails to support the construction placed upon it by the complaint. Where a variance exists between the written contract and the conclusion drawn by the pleader, the writing must prevail over the allegations of the complaint. ( Bogardus v. New York Life Ins. Co., 101 N.Y. 328; Kienle v. Gretsch Realty Co., 133 App. Div. 391.) No facts are alleged to support an action at law upon this contract. It may be that the plaintiff, under appropriate allegations, has a cause of action at law or in equity, but this pleading fails to state sufficient facts to constitute a cause of action. Lazansky, P.J., Carswell, Johnston, Adel and Close, JJ., concur.