By the Court
Wilson, J.To the complaint in this ease the Defendant interposed a general demurrer. It becomes necessary for us therefore to inquire whether the facts alleged in the complaint show that the Plaintiff has a cause of action. The gist of the action is the invalidity and worthlessness of certain “ certificates” delivered to the Plaintiffs in payment for work and labor by them performed.
The allegations of the complaint on this point are “ that by reason of gross negligence of said commissioners, and of all the Defendant’s agents in that behalf, in causing to be made an estimate of the whole expense of such work, and of the proportion to be assessed and charged to each lot, and of the number of cubic yards to be filled in and excavated in front of each lot, and in not causing such estimate to be filed with the then City Comptroller of said city, for the inspection of the parties interested, each and all of the said certificates at the time of said tender and delivery were utterly worthless, and no lien upon nor collectable out of the lots therein described in any manner,” t%c.
There is here hardly a single traversable fact alleged.
The statement that said certificates are worthless, and no lien *248upon nor oolloctable out of said lots is a conclusion of law, and therefore not admitted by the demurrer.
“ The gross negligence of the Defendant’s agents” does not necessarily render the Defendant liable to an action.
The acts of either omission or commission injurious to the Plaintiffs (if there were any such) by which such negligence was manifested, should have been specifically averred in the complaint. They were part of the facts constituting the Plaintiffs’ cause of action, and therefore it was incumbent on them to allege and prove them.
The inference we think to be drawn from the language of the complaint above quoted is that the “ estimate” was .made, but in a negligent manner, and that it was filed, but not with the “ then” City Comptroller.
The point of time intended to be fixed by the pleader by the use of the language “ the then City Comptroller,” is not ajiparent, and as the object of this suit is to show the “certificates” tobe void, not merely fess valuable on account of the negligence of Defendant’s agents, the time of filing, the “ estimate” may be a material fact, and it therefore should have been alleged. See Nash vs. City of St. Paul, 8 Minn., 179; Id., 184-5.
But we do not wish to here intimate any opinion on the question of the validity of these “ certificates.” Such question is not properly before us. It is not required of either the Defendant or the court to spell out from inferential statements or recitals the meaning of the complaint.
Every fact which the Plaintiff must prove to enable him to maintain his action, and which the Defendant has a right to controvert in his answer, must be distinctly averred, and a conclusion of law not justified by the facts stated is irrelevant and nugatory. Hall vs. Bartlett, 9 Barb., 301; Allen vs. Patterson, 3 Seld., 478; Boyce vs. Brown, 7 Barb., 85; Garvey vs. Fowler, 4 Sandf., 665; Smith vs. Leland, 2 Duer, 508-9; Jones vs. Phœnix Bk., 4 Seld., 238; Lienan vs. Lincoln, 2 Duer, 672; Laurence vs. Wright, Id., 674-5; Mann vs. Morewood, 5 Sandf,, 564; City of Buffalo vs. Holloway, 3 Seld., 498; Schenk vs. Naylor, 2 Duer, 678.
*249The law on this subject is very clearly laid down by Mr. Justice Duer, in case of Mann vs. Morewood, in the following language:
“ The language of this court, and I believe of all its Judges, from the time the Code has been in operation, has been uniform, that a complaint must set forth all the material and issuable facts which are relied on as establishing the Plaintiffs’ right of action, and not the inferences from those facts which under the advice of his counsel he may deem to be the conclusion of -law. To draw proper conclusions from the facts which are relied on as constituting a cause of action, or a valid defence, is the exclusive province and duty of the.court, and to enable the court to discharge that duty the facts themselves, not the conclusions that are supposed to flow from them, must be stated in the pleading.”
The demurrer only admits the traversable facts, not inferences or conclusions of law. Moss vs. Riddle, 5 Cranch, 351; Hall vs. Bartlett, 9 Barb., 301; Ford vs. Peering, 1 Ves. Jr., (Sumner’s ed.) 77, and cases cited in Note; City of Buffalo vs. Holloway, 3 Seld., 493.
The demurrer we think was well taken, and the ■ order of the coimt below overruling it is reversed.