(dissenting):
The motion made by defendant John Sanford was “ for an order and judgment dismissing the complaint as to the defendant John Sanford, on the ground that the cause of action did not accrue within the time limited by law for the commencement of an action thereon, in that the cause of action attempted to be set forth in the complaint is one to recover damages for a personal injury resulting from negligence, and was not commenced until January 16, 1925, although the cause of action accrued on or about June 7, 1921.” This motion was properly denied, as the action is clearly based upon an alleged breach of contract by the defendants and not on negligence. The contract alleged is: “ Fourth. On or about the 7th day of June, 1921, at Belmont Park, the defendants in consideration of the sum of Three Dollars and Eighty-five Cents ($3.85), then and there duly paid to them by the plaintiff, entered into a contract with the plaintiff, wherein and whereby, for said sum, the defendants granted the plaintiff a license, privilege and admission; to enter into and upon said park and place of interest hereinbefore referred to, and granted him the license and privilege of then and there witnessing such performance and contests as the defendant would then and there exhibit, and the defendants further promised and agreed to safely protect and carefully treat the plaintiff, while in and upon said property.”
Suit may be brought for the breach of such a contract, and it is no bar or answer thereto that one in tort might have been, or ordinarily would be, brought for the acts really complained of, which sound in negligence. (Busch v. Interborough R. T. Co., 187 N. Y. 388.)
In that case the action was brought to recover damages for defendant’s failure to properly transport plaintiff over its road in the city of New York. The court, speaking through Judge Hiscock (now chief judge) said (at p. 389): “ The real, substantial element of damages is an alleged assault upon and maltreatment of plaintiff by one of defendant’s employees after the former had passed through the gateway on to the platform of one of defendant’s stations for the purpose of taking a train, and the sole question *151is whether the action is one of contract or of tort. This inquiry is of controlling importance, since the Municipal Court where the cause originated had jurisdiction of an action of the former character and did not have jurisdiction of one of the latter kind.” And in holding that the action was one in contract he said: “ In a general way a tort is distinguished from a breach of contract in that the latter arises under an agreement of the parties, whereas the tort ordinarily is a violation of a duty fixed by law, independent of contract or the will of the parties, although it may sometimes have relation to obligations growing out of or coincident with a contract, and frequently the same facts will sustain either class of action. (Rich v. N. Y. C. & H. R. R. R. Co., 87 N. Y. 382, 390.)
“ And so while it may be conceded that, independent of any express promise or agreement, the defendant would have been subject to duties and obligations in favor of plaintiff, the violation of which by the acts complained of in this case would have amounted to a tort, that is not at all decisive that this action was not and could not be brought in contract.”
This action is squarely based upon the existence of a joint contract made by defendants and the breach thereof by them; the manner of its breach is not at all determinative of the nature of the suit.
Being an action for breach of contract the six-year Statute of Limitations applies. (Civ. Prac. Act, § 48, subd. 1.)
This motion and the affidavit on which it is based are directed solely to the defense of the Statute of Limitations to the cause of action pleaded. We are, therefore, limited to the determination of that question alone.
It is proper, however, to point out that in so deciding we are concluded by the allegations of the complaint in its present form. There is, however, a manifest inconsistency in the pleading. The 2d paragraph of the complaint sets forth that “ the defendant Westchester Racing Association, owned, managed, operated and controlled, a certain place of interest known "as Belmont Park.” The 3d paragraph sets forth that “ the defendant John Sanford was the owner of the yearling or young horse, hereinafter referred to.”
The allegation contained in the 4th paragraph, above quoted, that the defendants received plaintiff’s admission fee to the park and gave him a license to enter same and see the contests there exhibited by defendant and promised to safely protect and carefully treat him while therein, is a statement of fact entirely inconsistent with the preceding allegations that defendant association owned, operated and controlled the park, and, therefore, alone *152would have the right to grant such a license. How the defendant Sanford, by owning a horse, could acquire any right or interest in the park, or receive the admission fee thereto, or contract to protect plaintiff while therein, is a matter of pure speculation on which the complaint is silent. The allegations, it seems to me, are manifestly inconsistent and repugnant. Either the association alone made the contract, in which case it would be solely liable thereon, or Sanford had some property interest in the park, or some contract therein with its owner, which gave him a right to join in the making of the contract alleged by plaintiff, or Sanford could be held responsible for some negligence in the care or control of the horse owned by him, which would be quite separate and apart from the contract for plaintiff’s safety made by the owner, of the park, in which event Sanford would be hable only for negligence and the Statute of Limitations would have run.
But we are now concerned only with the Statute of Limitations urged as a defense to an action based, not on negligence, but on an alleged contract made by defendants jointly, and in the present state of the pleadings and in view of the kind of motion made by Sanford, that defense is not a bar to the action.
The order appealed from should, therefore, be affirmed, with ten dollars costs and disbursements to the respondent.
Clarke, P. J., concurs.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.