Judge v. Continental Bank

216 A.D. 818

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1926
• Status: Published

Opinion

Judgment reversed upon the law and the facts and a new trial granted, costs to abide the event. Judgment having been directed for the plaintiff on the opening, statements of counsel for the defendant regarding the merits of the controversy and the matters constituting the basis of the defense must be taken as true and given a construction most favorable to such defense. Under the circumstances disclosed by the record it could have been found that the contract was substantially completed by May 1, 1923, and that whatever details remained undone on that date were immediately thereafter attended to by Mr. Aron and the contract completed by him. And even if there was not a full completion of the work by May I, 1923, the plaintiff, by his conduct, waived strict compliance therewith. When the complaint contains no averment of a wrongful taking, but alleges a wrongful detention only, it is not necessary that the answer should allege title in a third party, but a general denial is sufficient. (See Griffin v. Long Island Railroad Co., 101 N. Y. 348; Byrne v. Weidenfeld, 113 App. Div. 451; Siedenbach v. Riley, 111 N. Y. 560.) Kelly, P. J., Rich, Manning, Young and Lazansky, JJ., concur.