John Ingraham v. C. Walter Anderson Et Al‪.‬

[1 A.D.2d 743 Page 743] Appeal from an order of the Supreme Court, Broome County, denying the motion of the defendants to dismiss the complaint for insufficiency on its face. The motion, as originally made, was addressed to the whole of the complaint and, since the first cause of action was conceded to be sufficient, the Special Term correctly denied the motion. A motion addressed to the sufficiency of a complaint is properly denied if any one of the causes of action set forth in the complaint is sufficient (Advance Music Corp. v. American Tobacco Co., 296 N. Y. 79). However, upon the oral argument of this appeal, the attorney for the plaintiff-respondent consented to having the motion considered as one addressed to the second cause of action alone so that the sufficiency of that cause of action could be determined at this time. Treating the motion as one addressed to the second cause of action, we hold that the motion should be granted and the second cause of action dismissed and that judgment on the pleadings should be granted accordingly. The plaintiff was an employee of a subcontractor upon a job for which the defendants were the general contractors. The first cause of action alleges that the plaintiff was injured through the negligence of the defendants. The second cause of action rests upon the provisions of the general contract [1 A.D.2d 743 Page 744]