Marcus Contracting Co. v. Weinbros Real Estate Co.

162 A.D. 495, 147 N.Y.S. 576, 1914 N.Y. App. Div. LEXIS 6014

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1914
• Status: Published

Opinion

Scott, J.:

The action is for the amount claimed to he due to plaintiff under a contract for shoring up a building. In such an action it is necessary that plaintiff should allege performance on its part. This it might do either by alleging in detail what it had done under the contract or by adopting the more convenient method authorized by section 533 of the Code of Civil Procedure of alleging that it had “duly” performed all the conditions of the contract on its part. In the present case the plaintiff has adopted neither method of pleadingperformance, but has alleged that it did “ actually ” perform and carry out all of the terms, covenants and conditions in said agreement contained on its part. This is not equivalent to an allegation that it1 c duly ” performed. (Feuerstein v. German Union Fire Ins. Co., 141 App. Div. 456; Rosenthal v. Rubin, 148 id. 44.) The complaint, therefore, contains no sufficient allegation of the performance on plaintiff’s part, and consequently fails to state a cause of action.

The order should he reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave to plaintiff to amend its complaint within twenty days upon payment of such costs.

Ingraham, P. J., McLaughlin, Clarke and Hotchkiss, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to amend on payment of such costs.