Witherbee v. . Meyer

61 N.E. 554, 168 N.Y. 641, 6 Bedell 641

• Court: New York Court of Appeals
• Decided: October 18, 1901
• Status: Published

Opinion

Per Gurimn.

The pleadings do not permit the appellant to raise the objections to the plaintiffs’ recovery which have been argued on this appeal. . The complaint alleges that the defendant accepted said conveyance, “ and promised to perform the stipulations and covenants ” contained in the lease made by the plaintiffs’ grantor to the defendant’s grantor.

The conveyance to the defendant is not set forth and, therefore, the allegation cited from the complaint must be con- . side red as an averment of fact, not as a conclusion of law. T*he appellant, by not denying this allegation in his answer, has admitted it, and could not on the trial, nor can he now on appeal, avoid the effect of such admission.

The judgment appealed from should be affirmed, with costs.

Parker, Ch. J., Gray, Bartlett, Martin, Yann, Cullen and Werner, JJ., concur.

Judgment affirmed.