Interborough Woodworking Corp. v. Henry Mandel Building Co.

Order denying motion of appealing defendants to dismiss amended complaint for insufficiency reversed upon the law and the facts, with ten dollars costs and disbursements, and motion granted, -with ten dollars costs, -with leave to plaintiff to plead over within ten days from the entry of the order herein. The complaint is defective in the following respects: (1) There is no allegation of facts showing that plaintiff’s assignor was entitled to a payment under the contract, the failure to make which was plaintiff’s assignor’s excuse for not proceeding with the contract; (2) there is no allegation that plaintiff was able and ready to proceed with the contract if it had not been breached; (3) insufficient facts are set forth to show compliance with the Lien Law as to content of notice of lien; (4) there is no allegation that the receiver in bankruptcy returned the assets to plaintiff’s assignor as directed by the bankruptcy court. Lazansky, P. J., Young, Kapper, Seudder and Tompkins, JJ., concur.