Hudson Companies v. Briemer

113 N.Y.S. 997

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 7, 1909
• Status: Published

Opinion

FORD, J.

This is an appeal from an order granting judgment to the plaintiff on the answer as frivolous, and from the judgment entered thereon. One paragraph of the complaint alleges “that plaintiff has duly performed all the conditions of said lease on its part.” This is a sufficient allegation of performance in respect of conditions precedent. Code Civ. Proc. § 533. In the answer the “defendant denies that said plaintiff performed all of the conditions of the lease of said premises on its part to be performed.” -This is a denial which, I think, saves the answer from frivolousness. As was said by Bischoff, J., in Electrical Equipment Company v. Feuerlicht et al. (Sup.) 90 N. Y. Supp. 467:

“The denial that the plaintiff had performed all the conditions precedent Involved no statement of a negative pregnant, since the failure to perform any one condition precedent would be fatal, and the plaintiff must needs prove his case within the full extent of the denial.”

But no further authority than the express language of section 533 of the Code is needed to show that the answer raises a material issue.

The judgment and order directing judgment are reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.