Smith v. Brown
New York Supreme Court
This was an appeal from a judgment rendered at a special term, overruling the defendants’ demurrer to the complaint. That pleading set forth two agreements in writing, which it was averred were made, the first on the 27th day of February, 1851, between the plaintiff and the defendants, Brown and Bailey, and one Orlando Smith, who were then trustees of school district Ho. 30, in Potsdam, of which the present defendants were trustees at the commencement of this suit; and the…
Read the full summary
This was an appeal from a judgment rendered at a special term, overruling the defendants’ demurrer to the complaint. That pleading set forth two agreements in writing, which it was averred were made, the first on the 27th day of February, 1851, between the plaintiff and the defendants, Brown and Bailey, and one Orlando Smith, who were then trustees of school district Ho. 30, in Potsdam, of which the present defendants were trustees at the commencement of this suit; and the other between the plaintiff and the defendants in this suit, on the 1st day of’September, 1851, for extra work, which…
1Opinion of the Court
By the Court, C. L. Allen, J.
The plaintiff was. bound to. aver a performance of the work, as it was a condition precedent to the payment. The principal question on this demurrer is, *433whether he has averred such performance. If he had simply alleged that he had performed all the contracts and agreements in every respect, and omitted the qualifying part, I think he would substantially have complied with § 162 of the code; but he adds to his general averment, that he had performed “ in every respect, except wherein the same were afterwards waived and altered from said written agreements, by the…
2Cases cited1 opinion
- Baldwin v. MunnNew York Supreme Court · 1829
3Cited by6 opinions
- La Chicotte v. Richmond Railway & Electric Co.Appellate Division of the Supreme Court of the State of New York · 1897
- Todd v. Union Casualty & Surety Co.Appellate Division of the Supreme Court of the State of New York · 1902
- Hatch v. PeetNew York Supreme Court · 1857
- Learmonth v. VeederWisconsin Supreme Court · 1860
- Alden Speare's Sons' Co. v. Casein Co. of AmericaNew York Supreme Court · 1907
1 more not listed; retrieve them via the Exa API.