Harrity v. Steers

195 A.D. 11, 185 N.Y.S. 704, 1921 N.Y. App. Div. LEXIS 4687

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 7, 1921
• Status: Published

Opinion

Jenks, P. J.:

It is possible that the contract contemplated services by the plaintiff which were complete when he presented a tenant able, ready and willing to execute a lease, irrespective of his financial ability. If so, then the complaint is good against the demurrer.

The rule of strictness against the pleader has been greatly modified. (Code Civ. Proc. § 519; Kain v. Larkin, 141 N. Y. 144, 150; Crotty v. Erie Railroad Co., 149 App. Div. 262; Coatsworth v. Lehigh Valley R. Co., 156 N. Y. 457; Troy Automobile Exchange v. Home Ins. Co., 221 id. 58.) I think that if we assume that the contract contemplated the financial ability of the proposed tenant to perform the lease, the pleading can be sustained against the demurrer. The word “ able ” may be construed as relative to the financial power of the tenant. In Richardson v. Brisker (7 Colo. 58) it is said that the words “ when able,” “ of course the expression must be construed as referring to financial ability.” “ To execute ” . may be equipollent to “ to perform.” “ F. executer; L. ex-sequi, to follow out, follow to the end, perform.” (Anderson Law Dict. 429, n.; Rawle’s Bouvier Law Diet. “ Execute; ” Century Dict. “ Execute,” 3 (b).) It may mean “ to fulfil ” or “¡to complete.” (Den v. Young, 12 N. J. Law, 303.) Thus we may paraphrase fairly, one ready, willing and financially able to perform the lease.

The order is reversed, with ten dollars costs and disbursements, and the motion is denied, without costs.

Mills, Blackmar, Kelly and Jaycox, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion denied, without costs.