Zaiss v. George C. Heimerdinger Co.
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, George C. Heimerdinger 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 17th day of December, 1919, denying defendant’s motion for judgment on the pleadings.
1Per curiam
While we agree with the Special Term that the contract sued upon was not within the Statute of Frauds (Pers. Prop. Law, § 31, subd. 1), we think the complaint was defective in failing properly to allege performance of the contract on the part of the plaintiff. The allegation is that “plaintiff * * * has performed the same fully and entirely complying with all the *672conditions on his part to be performed.” By section 533 of the Code of Civil Procedure it is made unnecessary to plead the facts constituting performance, but the party must- allege generally that he has duly performed all the…
2Cases cited1 opinion
- Clemens v. American Fire Insurance of PhiladelphiaAppellate Division of the Supreme Court of the State of New York · 1902
3Cited by2 opinions
- Murphy v. MahoneyNew York Supreme Court · 1946
- Link v. O-So-White, Inc.New York Supreme Court · 1930