Rogers v. Burk
New York Supreme Court
THIS was an action of covenant. The plaintiff in Ms decla- . *■ ration stated an agreement, in which me defendant covenanted to Put UP and enclose for him, (the plaintiff,) a house and kitchen, &c. according to a draft, &c. in a good, substantial and workmanlike manner, &c. on or before the 1st October (then) instant; that ' ' ¿lie plaintiff was to furnish the timber and materials, &c.; and he averred that he did furnish all the timber and materials, &c. requested, according…
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THIS was an action of covenant. The plaintiff in Ms decla- . *■ ration stated an agreement, in which me defendant covenanted to Put UP and enclose for him, (the plaintiff,) a house and kitchen, &c. according to a draft, &c. in a good, substantial and workmanlike manner, &c. on or before the 1st October (then) instant; that ' ' ¿lie plaintiff was to furnish the timber and materials, &c.; and he averred that he did furnish all the timber and materials, &c. requested, according to the agreement, 8cc.; and did well and truly perform all things on his part to be performed, &c.; but that the…
1Per curiam
The replication must be taken, upon special demurrer, to be defective. It traverses the time stated in the plea in which the frame was erected, whereas the day was not material.' It should, also, have been confined to a traverse of the allegation of performance by the defendant. By traversing the tender stated by the defendant, and by introducing averments of the performance of the covenant on the part of the defendant, (which were wholly unnecessary^ ás they were contained in the declaration,) the replication was loaded with multifarious and unnecessary matter, and put in issue distinct…
2Cited by3 opinions
- Mohawk Bridge Co. v. Utica & Schenectady Rail RoadNew York Court of Chancery · 1837
- Tucker v. Ladd & LaddNew York Supreme Court · 1827
- Scott v. WhippleSupreme Judicial Court of Maine · 1830