Rosenthal v. Schaefer

New York Supreme Court

Rosenthal v. Schaefer

129 Misc. 229, 220 N.Y.S. 330, 1927 N.Y. Misc. LEXIS 830

DecidedFebruary 22, 1927

StatusPublished

This text of 129 Misc. 229 (Rosenthal v. Schaefer) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rosenthal v. Schaefer, 129 Misc. 229, 220 N.Y.S. 330, 1927 N.Y. Misc. LEXIS 830 (N.Y. Super. Ct. 1927).

Pincite

Opinion

Valente, J.

The complaint is attacked on the ground of insufficiency of allegation of performance of conditions precedent. The clause attacked reads: “ That the plaintiff herein, the landlord and lessor described in said lease, has duly complied with all the terms, covenants and conditions upon her part to be performed in accordance with the terms of the said lease.”

Rule 92 of the Rules of Civil Practice requires that the pleader allege that he “ duly performed all the conditions of such contract on his part.” It has been very strictly construed. I might say, paraphrasing the language of Presiding Justice Kelly in Berger v. Urban Motion Picture Industries, Inc. (206 App. Div. 379, 383), I am not prepared to say that “ complied with ” is not synonymous with “ performed.” “At any rate,” he continues, “ there is the plain language of the statute; it is easy to comply with it, if a plaintiff desires to take advantage of the rule, and I am not in favor of introducing variations and excuses and unsettling the law as laid down in the authorities.”

The motion is granted, without costs, with leave to amend within twenty days of the entry of the order, issue to remain as of the original date. Settle order.

Free access — add to your briefcase to read the full text and ask questions with AI

Valente, J.

The complaint is attacked on the ground of insufficiency of allegation of performance of conditions precedent. The clause attacked reads: “ That the plaintiff herein, the landlord and lessor described in said lease, has duly complied with all the terms, covenants and conditions upon her part to be performed in accordance with the terms of the said lease.”

Rule 92 of the Rules of Civil Practice requires that the pleader allege that he “ duly performed all the conditions of such contract on his part.” It has been very strictly construed. I might say, paraphrasing the language of Presiding Justice Kelly in Berger v. Urban Motion Picture Industries, Inc. (206 App. Div. 379, 383), I am not prepared to say that “ complied with ” is not synonymous with “ performed.” “At any rate,” he continues, “ there is the plain language of the statute; it is easy to comply with it, if a plaintiff desires to take advantage of the rule, and I am not in favor of introducing variations and excuses and unsettling the law as laid down in the authorities.”

The motion is granted, without costs, with leave to amend within twenty days of the entry of the order, issue to remain as of the original date. Settle order.

Cite This Page — Counsel Stack

Bluebook (online)

129 Misc. 229, 220 N.Y.S. 330, 1927 N.Y. Misc. LEXIS 830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosenthal-v-schaefer-nysupct-1927.

Opinion

Related

Cite This Page — Counsel Stack