Marcus Contracting Co. v. Weinbros Real Estate Co.
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, Weinbros Real Estate Company, from an order of, the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of January, 1914, denying its motion for judgment on the pleadings.
1Opinion of the Court
Scott, J.:
The action is for the amount claimed to he due to plaintiff under a contract for shoring up a building. In such an action it is necessary that plaintiff should allege performance on its part. This it might do either by alleging in detail what it had done under the contract or by adopting the more convenient method authorized by section 533 of the Code of Civil Procedure of alleging that it had “duly” performed all the conditions of the contract on its part. In the present case the plaintiff has adopted neither method of pleadingperformance, but has alleged that it did “ actually ”…
2Cases cited1 opinion
- Feuerstein v. German Union Fire InsuranceAppellate Division of the Supreme Court of the State of New York · 1910