Van Derwerken v. Polachek

205 A.D. 847

Opinion

Order affirmed, with ten dollars costs and disbursements. The contract in suit called for the rendition of plaintiff’s erviees to the satisfaction of defendant. Plaintiff had to aver in his complaint, and prove on the trial, rendition of the services as called for by the contract, namely, to the satisfaction of defendant. A denial of the allegation of the complaint as to performance under the terms of the contract would allow defendant to offer evidence that the services were not satisfactory to him. The pleading of the same matter by way of defense was, therefore, unnecessary, and plaintiff is not entitled to particulars of a claim which he himself had to meet by evidence. (See Delano v. Columbia M. Works & M. Iron Co., 179 App. Div. 153; affd., on opinion below, 226 N. Y. 660; Fried v. Singer,-Mass.-; 136 N. E. Rep. 609.) Rich, Jaycox, Manning, Kelby and Young, JJ., concur. .