Kahn v. Imershein — 246 N.Y. 565

Majority

p. 565

Paul A. Kahn, Appellant, v. Louis Imershein, Defendant, and Gerty Resnick, Respondent.

Headnote

Pleading — contract — sufficiency of complaint in action for breach of contract to purchase rights in contract for sale of real property — failure to allege tender of performance or facts excusing tender.

Kahn v. Imershein, 219 App. Div. 721 , affirmed.

(Submitted October 13, 1927;

decided October 28, 1927.)

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 4, 1927, which affirmed an order of Special Term granting a motion, by defendant, for judgment on the pleadings. The action was to recover for breach of a written contract whereby defend

p. 566

ants agreed to purchase plaintiff’s rights in a contract for the sale, to him of certain real property. The following questions were certified:

“ 1. Does the complaint state facts sufficient to constitute a cause of action?

“2. Does the complaint state facts sufficient to constitute a cause of action for the recovery of the sum of $22,000, being the installment due on August 11, 1925?

“ 3. Can the bill of particulars be considered upon this motion for any purpose?

“ 4. If question 3 is answered in the affirmative, does the complaint state facts sufficient to constitute a cause of action when so considered with the bill of particulars?

“ 5. If question 3 is answered in the affirmative, does the complaint state facts sufficient to constitute a cause of action for the recovery of the sum of $22,000, being the installment due on August 11, 1925, when so considered with the bill of particulars.”

H. J. Reii and Seth V. Elting for appellant.

Joseph Kahn and Benjamin Lichterman for respondent.

Order affirmed, with costs, on ground that the complaint fails to state a tender of performance by plaintiff or facts excusing such tender and permitting recovery on principal of plaintiff’s readiness to perform. Third question certified answered in the affirmative; fourth and fifth questions in the negative. Other questions not answered.

Concur: Cardozo, Ch. J., Crane, Andrews, Lehman and O’Brien, JJ.; Pound, J., concurs in result; Kellogg, J., not sitting.