Trembath v. Berner — 208 A.D. 822

Majority

p. 822

Third Department,

March, 1924.

Aulda J. Trembath, Respondent, v. Charles M. Berner, Appellant, Impleaded with Another, Defendant.

Headnote

Contracts — action for breach — pleadings — plaintiff must allege readiness and ability to perform — recovery cannot be had where plaintiff alleges his inability to perform.

Appeal from a judgment of the Supreme Court, entered in the Delaware county clerk’s office June 7, 1923, upon the decision of the court.

The plaintiff having failed to allege readiness and ability on his own part to perform the contract in question, and on the contrary having alleged his own inability to perform it, may not maintain this action to recover from the defendant because of his failure to perform. All concur. Judgment reversed on the law, and complaint dismissed, with costs.