Witherbee v. Meyer — 168 N.Y. 641

Majority

p. 641

Mary L. Witherbee et al., as Administrators of Robbins Witherbee et al., Respondents, v. Aubrey E. Meyer, Appellant.

Headnote

Witherbee v. Meyer, 48 App. Div. 638 , affirmed.

(Argued October 11, 1901;

decided October 18, 1901.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered March 23, 1900, affirming a judgment in favor of plaintiffs entered upon the report of a referee.

J. Sanford Potter for appellant.

0. A. Dennis for respondents.

The pleadings do not permit the appellant to raise the objections to the plaintiffs’ recovery which have been argued on this appeal. . The complaint alleges that the defendant accepted said conveyance, “ and promised to perform the stipulations and covenants ” contained in the lease made by the plaintiffs’ grantor to the defendant’s grantor.

The conveyance to the defendant is not set forth and, therefore, the allegation cited from the complaint must be con- . side red as an averment of fact, not as a conclusion of law. T*he appellant, by not denying this allegation in his answer, has admitted it, and could not on the trial, nor can he now on appeal, avoid the effect of such admission.

The judgment appealed from should be affirmed, with costs.

Parker, Ch. J., Gray, Bartlett, Martin, Yann, Cullen and Werner, JJ., concur.

Judgment affirmed.