When Courtlandt Babcock, plaintiff’s assignor, retired, from the firm of Babcock, Swartwout & Oo., the other members agreed to thereafter pay him, for his interest in the good will of the business, from the profits, $5,000 annually, or if that amount were not made, then such amount as was made. The agreement was in writing, is annexed to and made a part of the complaint.
It may well be doubted, under the allegations of the complaint, when read in connection with the agreement, whether a cause of action in equity is not stated. The legal effect of the agreement, as I-read it, is that the payments to be made to Babcock are from the profits of the business thereafter to be made. If profits were made, and the defendants threatened to divide the same among themselves, before paying the plaintiff, I am inclined to think a court of equity would have the power to enjoin such division. It is true there are no allegations in the complaint that the defendants had threatened to make such division, but such allegations were unnecessary, in view of the fact that they deny any profits have been made. But for the purpose of the discussion, I assume that the complaint does not state a cause of action in equity. Nevertheless, I am of the opinion that it states a good cause of .action at law and for that *733reason the demurrer was properly overruled. It alleges that for the year beginning November 1, 1913, and ending October 31, 1914, $5,000 profits were made; that the same has not been paid; that the whole amount is due and the demand for judgment is “ that the defendants pay over to the plaintiff the amount now due and owing by defendants to plaintiff as aforesaid * *
The demurrer is upon the ground that the complaint does not state facts sufficient to constitute a cause of action, and in determining that question every allegation of fact, as well as those which may be reasonably implied therefrom, must be taken as true. (Coatsworth v. Lehigh Valley R. Co., 156 N. Y. 451; Sage v. Culver, 147 id. 241.) A plaintiff is not obliged to label his complaint or state therein whether he is proceeding at law or in equity, since the distinction that formerly existed between actions at law and suits in equity has been abolished. (Code Civ. Proc. § 3339.) All that is required is that the complaint shall contain a plain and concise statement of the facts constituting the cause of action and a demand for judgment. (Code Civ. Proc. § 481.) The general rule is that if the facts stated show that the plaintiff is entitled to any relief, either legal or equitable, the complaint is not demurrable on the ground that it does not state facts sufficient to constitute a cause of action (Abbey v. Wheeler, 170 N. Y. 122, 127; Mitchell v. Thorne, 134 id. 536, 542; Gillespie v. Montgomery, 93 App. Div. 403; Hotel Register Co. v. Osborne, 84 id. 307; Squiers v. Thompson, 73 id. 552; affd., 172 N. Y. 652; Lester v. Seilliere, 50 App. Div. 239; Middleton v. Ames, 37 id. 510), nor because the party has not demanded the precise relief to which he appears to be entitled. (Wetmore v. Porter, 92 N. Y. 76.)
Where a motion has been made for judgment on the pleadings -under section 547 of the Code of Civil Procedure, it has been held that such a motion is equivalent to a demurrer for insufficiency (Chism v. Smith, 210 N. Y. 198; Abbott v. Easton, 195 id. 372) and that such motion cannot be granted if the facts stated show that the plaintiff is entitled to any relief, either legal or equitable. (Clark v. Levy, 130 App. Div. 389; Gee v. Pendas, 66 id. 566.)
*734But it is contended that a contrary rule has been established where an answer has not been interposed, and in such case if it appears that the action was brought in equity and no cause of action in equity is set out, then the demurrer should be sustained, even though facts are stated to warrant a recovery at law. The authorities cited, among others, in support of that contention are Swart v. Boughton (35 Hun, 281); Black v. Vanderbilt (70 App. Div. 16); Cody v. First National Bank (63 id. 199); Perrin v. Smith (135 id. 127), and Reich v. Cochran (162 id. 619). Bach of these cases is distinguishable from the present one, unless it be Black v. Vanderbilt (supra). Thus, in Swart v. Boughton (supra) only equitable relief was asked for and the court held “ that where all of the allegations of the complaint are made for the purpose of procuring equitable relief, and where equitable relief alone is asked for, the complaint cannot be sustained for legal redress, where no answer has been interposed.” In Cody v. First National Bank (supra) money damages were demanded, while the complaint showed the only right of plaintiff was in equity. The converse of the proposition was held in Reich v. Cochran (supra) where the only relief demanded was in equity and the facts showed that if plaintiff were entitled to recover at all he had an adequate remedy at law. On appeal, this court was reversed, the Court of Appeals holding a cause of action in equity was stated. Perrin v. Smith (supra) was an appeal from an order denying a motion for judgment on the pleadings upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The order was affirmed and the statement in the opinion to the effect that if a demurrer had been interposed instead of an answer, it would have been sustained, is dictum and nothing else. In Black v. Vanderbilt (supra) the decision was put upon the ground that “no legal redress is demanded, and it conclusively appears that the complaint was framed for equitable relief alone.” I concurred in the prevailing opinion in that case, but subsequent consideration of the question involved has led me to the conclusion that the decision was against the weight of authority, and if not, has since been overruled by this court (Squiers v. Thompson, supra; Gillespie v. Montgomery, supra; Hotel *735Register Co. v. Osborne, supra); and is contrary to the rule laid down by the Court of Appeals. That court, in Abbey v. Wheeler (supra), said: “When a complaint is met by a demurrer on the ground that no cause of action is stated, the question always is, assuming every fact alleged to be true, whether enough has been well stated to constitute any cause of action whatever. If the facts alleged in the complaint justify a recovery, either at law or in equity, it cannot be held that the demurrer is well taken, although the pleading may be open to correction by motion or otherwise.” This was but a restatement of the rule previously laid down by the same court. Thus in Mitchell v. Thorne (supra) it said: “If the facts stated in a complaint are sufficient to constitute a cause of action, whether legal or equitable, the complaint is not demurrable on the ground that it does not state sufficient facts, because the judgment demanded is inconsistent with the cause of action státed, nor because both legal and equitable relief are demanded when plaintiff is entitled to but one.”
Under our system of practice a defendant may demur to the complaint on the ground that it does not state facts sufficient to constitute a cause of action, and in this way the issue raised can be determined; or he may demur or answer and then move for j udgment upon the pleadings; or he may wait until the cause is moved for trial and then ask for a dismissal. In each case the question presented is, “ Do the facts set out in the complaint state any cause of action ? ” The answer to the question is determined, and “asa matter of common sense, and in the interests of good practice ” should be, by the application of the same general rule. To have one rule for determining the sufficiency of a complaint, where a demurrer is interposed, and another where an answer is interposed, is not in the interest of good practice or the promotion of justice. Not only this, but the sufficiency of a complaint can never be determined by or depend upon an act of the adverse party. It must stand or fall according to the allegations contained in it. It cannot be that its sufficiency depends upon whether an answer or demurrer has been served.
The facts set out in the complaint are ample to warrant a recovery at law for damages for breach of contract. The *736demand for judgment is appropriate for such recovery, and I am clearly of the opinion that the demurrer, for that reason, was properly overruled and the judgment should he affirmed.
Dowling, J., concurred.
Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff; to amend on payment of costs.