Roy Realty Co. v. B. Altman & Co. — 231 N.Y. 549

Majority

p. 549

Roy Realty Company, Appellant, v. B. Altman & Co., Respondent.

Headnote

Pleading — contract — complaint in action for breach of contract to deliver goods “ as soon as possible ” not demurrable for failure to allege that delivery had been possible.

Roy Really Co. v. Altman & Co., 194 App. Div. 43 , reversed.

(Submitted April 19, 1921;

decided May 3, 1921.)

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 12, 1920, which reversed an order of Special Term overruling a demurrer to the complaint and sustained such demurrer. The action was for breach of a written contract by which defendant agreed to deliver “ as soon as possible ” certain linens. The complaint alleged failure to deliver within a reasonable time. The Appellate Division held that for lack cf an allegation that delivery had been possible before the commencement of the action the complaint was bad.

The following question was certified: “ Does the complaint herein state facts sufficient to constitute a cause of action? ”

Charles S. Fettretch and Edward S. Clinch for appellant.

Solomon Hanford for respondent.

Order of Appellate Division reversed and that of Special Term affirmed,' with costs in this court and Appellate Division, and question certified answered in the affirmative on dissenting opinion of Page, J., below.

Concur: His cock, Ch. J., Chase, Hogan, Cardozo, Pound, McLaughlin and Andrews, JJ.