Marcus Contracting Co. v. Weinbros Real Estate Co.

Majority

p. 495

Marcus Contracting Company, Inc., Respondent, v. Weinbros Real Estate Company, Appellant.

First Department,

May 15, 1914.

Headnote

Pleading—action for work, labor and services — allegations as to performance by plaintiff — allegation that plaintiff “ actually ” performed.

In an action to recover sums alleged to be due under a contract for work, labor and services, the plaintiff must allege performance on his part. He may do this either by alleging in detail what was done under the contract, or by alleging that he has “ duly” performed all the conditions of the contract, as authorized by section 533 of the Code of Civil Procedure.

An allegation that the plaintiff did “ actually ” perform and carry out all the terms and conditions in said agreement contained on his part, is not equivalent to an allegation that he “ duly ” performed, and, hence, the complaint fails to state a cause of action.

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.

Leo Bernard Levy, for the appellant.

Joseph Rubin, for the respondent.

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 ” perform and carry out all of the terms, covenants and conditions in said agreement contained on its part. This is not equivalent to an allegation that it1 c duly ” performed. (Feuerstein v. German Union Fire Ins. Co., 141 App. Div. 456 ; Rosenthal v. Rubin, 148 id. 44.) The complaint, therefore, contains no sufficient allegation of the performance on plaintiff’s part, and consequently fails to state a cause of action.

The order should he reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave to plaintiff to amend its complaint within twenty days upon payment of such costs.

Ingraham, P. J., McLaughlin, Clarke and Hotchkiss, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to amend on payment of such costs.