Embassy Cooperative, Inc. v. Chestnut Construction Corp.

Appellate Division of the Supreme Court of New York

Embassy Cooperative, Inc. v. Chestnut Construction Corp.

18 A.D.2d 629, 235 N.Y.S.2d 186, 1962 N.Y. App. Div. LEXIS 6451

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 11, 1962

StatusPublished

This text of 18 A.D.2d 629 (Embassy Cooperative, Inc. v. Chestnut Construction Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Embassy Cooperative, Inc. v. Chestnut Construction Corp., 18 A.D.2d 629, 235 N.Y.S.2d 186, 1962 N.Y. App. Div. LEXIS 6451 (N.Y. Ct. App. 1962).

Pincite

Opinion

Order entered May 4, 1962, denying plaintiff’s motion to modify defendants’ demand for a bill of particulars, modified on the law and in the exercise of discretion to the extent of striking item 7 (a) and eliminating from the demand the words “ in detail ” and “ exactly ” wherever they appear, and as so modified the order is affirmed, without costs. Item 7 (a) calls for particulars with respect to defendants’ alleged waiver, modification or excusal of performance of conditions precedent. However, the performance or nonperformance of conditions precedent was not put in issue by defendants in their answer in the manner required by rule 92 of the Rules of Civil Practice. In the circumstances, the pleading of waiver, modification or excusal of performance is surplusage and consequently item 7 (a) must be stricken. Concur — Rabin, J. P., McNally, Eager and Steuer, JJ.; Stevens, J., dissents and votes to affirm. Settle order on notice.

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Order entered May 4, 1962, denying plaintiff’s motion to modify defendants’ demand for a bill of particulars, modified on the law and in the exercise of discretion to the extent of striking item 7 (a) and eliminating from the demand the words “ in detail ” and “ exactly ” wherever they appear, and as so modified the order is affirmed, without costs. Item 7 (a) calls for particulars with respect to defendants’ alleged waiver, modification or excusal of performance of conditions precedent. However, the performance or nonperformance of conditions precedent was not put in issue by defendants in their answer in the manner required by rule 92 of the Rules of Civil Practice. In the circumstances, the pleading of waiver, modification or excusal of performance is surplusage and consequently item 7 (a) must be stricken. Concur — Rabin, J. P., McNally, Eager and Steuer, JJ.; Stevens, J., dissents and votes to affirm. Settle order on notice.

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Bluebook (online)

18 A.D.2d 629, 235 N.Y.S.2d 186, 1962 N.Y. App. Div. LEXIS 6451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/embassy-cooperative-inc-v-chestnut-construction-corp-nyappdiv-1962.