Porter Improvement Corp. v. Schur

Appellate Terms of the Supreme Court of New York

Porter Improvement Corp. v. Schur

149 Misc. 662, 267 N.Y.S. 874, 1933 N.Y. Misc. LEXIS 1732

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 29, 1933

StatusPublished

This text of 149 Misc. 662 (Porter Improvement Corp. v. Schur) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Porter Improvement Corp. v. Schur, 149 Misc. 662, 267 N.Y.S. 874, 1933 N.Y. Misc. LEXIS 1732 (N.Y. Ct. App. 1933).

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Opinion

Per Curiam.

In this action to recover rent and security agreed to be deposited under a written lease, plaintiff, contrary to the allegations of the complaint as limited by the bill of particulars, was permitted, against defendant’s objection, to prove a cause of action [663]*663necessarily based upon oral testimony establishing, as decided by ■the court below, that defendant had orally agreed to take a lease for two years of the premises referred to in the complaint. Defendant’s exception to the admission of the evidence presents prejudicial error, though the Statute of Frauds was not invoked on the trial.

Assuming the paper pleaded in the complaint and set out in the bill of particulars is an agreement for a lease, for a breach of which agreement defendant would be liable, in the absence of an allegation in the complaint of performance of conditions precedent or concurrent by the plaintiff, no cause of action is stated, and judgment on the pleadings should have been awarded defendant.

Judgment and order reversed, with thirty dollars costs, and motion for judgment on the pleadings granted, with leave to plaintiff to serve an amended complaint within five days after service of order entered hereon upon payment of costs.

All concur; present, Lydon, Levy and Callahan, JJ.

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Per Curiam.

In this action to recover rent and security agreed to be deposited under a written lease, plaintiff, contrary to the allegations of the complaint as limited by the bill of particulars, was permitted, against defendant’s objection, to prove a cause of action [663]*663necessarily based upon oral testimony establishing, as decided by ■the court below, that defendant had orally agreed to take a lease for two years of the premises referred to in the complaint. Defendant’s exception to the admission of the evidence presents prejudicial error, though the Statute of Frauds was not invoked on the trial.

Assuming the paper pleaded in the complaint and set out in the bill of particulars is an agreement for a lease, for a breach of which agreement defendant would be liable, in the absence of an allegation in the complaint of performance of conditions precedent or concurrent by the plaintiff, no cause of action is stated, and judgment on the pleadings should have been awarded defendant.

Judgment and order reversed, with thirty dollars costs, and motion for judgment on the pleadings granted, with leave to plaintiff to serve an amended complaint within five days after service of order entered hereon upon payment of costs.

All concur; present, Lydon, Levy and Callahan, JJ.

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Bluebook (online)

149 Misc. 662, 267 N.Y.S. 874, 1933 N.Y. Misc. LEXIS 1732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/porter-improvement-corp-v-schur-nyappterm-1933.