Legal Opinion

Downs v. Lehman

Appellate Division of the Supreme Court of the State of New York

Decided December 5, 1907PublishedCited by 3 opinions

Appeal by the defendant, Edgar Lehman* from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Suffolk on the 8th day of April, 1907, upon the decision of the court, rendered after a trial at the Suffolk Special Term, overruling the defendant’s demurrer to^ the complaint. The complaint is- by seller against purchaser for the specific performance of a contract for the purchase of real "estate.

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Appeal by the defendant, Edgar Lehman* from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Suffolk on the 8th day of April, 1907, upon the decision of the court, rendered after a trial at the Suffolk Special Term, overruling the defendant’s demurrer to^ the complaint. The complaint is- by seller against purchaser for the specific performance of a contract for the purchase of real "estate. The contract, which is made part of the complaint, contains" the following separate clause: “ The' title to the premises above described to"…

1Opinion of the Court

(xAYNOB, J. :

The rule requiring a complaint to allege performance. by the plaintiff of all conditions precedent on his part to his fight of action is ancient and undoubted. • ft lias been incorporated in our '"code of practice by a provision that,such requirement is sufficiently complied, with by a general allegation that the plaintiff “ duly performed all the conditions on his part ” (Code Civ. Proc. § 533). But the clause of this contract that the title is to be approved by the title insurance company imposes no condition on the plaintiffs’, part.. The title has to be ¿xámined by the…

2Cases cited2 opinions

  1. Flanagan v. FoxNew York Court of Common Pleas · 1893
  2. McManus v. Western Assurance Co. of TorontoAppellate Division of the Supreme Court of the State of New York · 1899

3Cited by3 opinions

  1. Allen v. McKeonAppellate Division of the Supreme Court of the State of New York · 1908
  2. Eastman v. HorneAppellate Division of the Supreme Court of the State of New York · 1910
  3. Fanning v. LehmanAppellate Division of the Supreme Court of the State of New York · 1907

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