Majority
p. 1015(53 Misc. Rep. 58) ALDEN SPEARE’S SONS’ CO. v. CASEIN CO. OF AMERICA. (Supreme Court, Special Term, New York County. February, 1907.)
Headnote
Pleading—Facts or Conclusions—Performance of Conditions—Contracts —Action on—Complaint.An agreement set forth in a complaint contained several stipulations which might or might not be construed as conditions to be complied with before plaintiff could put defendant in default. The complaint further alleged “that all the conditions above mentioned were fulfilled or waived by the defendants.” Held, that the facts of performance or waiver should be alleged without qualification and by averments of facts constituting such performance and waiver.
Action by the Alden Speare’s Sons’ Company against the Casein Company of America. Demurrer to complaint. Sustained.
Carter & Haskell, for plaintiff.
Gillespie & O’Connor, for defendant.
The agreement set forth in the complaint contains several stipulations, which might or might not be construed as conditions which must be complied with before the plaintiff could put the defendant in default. The complaint then alleges that “all the conditions above mentioned were fulfilled or were waived by the defend-
p. 1016
ants.” This allegation determines the character of the stipulations mentioned, and requires that the facts- of performance and of waiver be alleged without qualification and by an averment of .the facts constituting such, performance and waiver. Todd v. Union Casualty & Surety Co., 70 App. Div. 52 , 74 N. Y. Supp. 1062 ; Pope Mfg. Co. v. Rubber Goods Mfg. Co., 110 App. Div. 341 , 97 N. Y. Supp. 73 ; Smith v. Brown, 17 Barb. (N. Y.) 431. Since the complaint is defective, the demurrer thereto on the ground that it fails to state a cause of action is sustained.
Demurrer sustained.
Cases cited
- Pope Mfg. Co. v. Rubber Goods Mfg. Co. 110 App. Div. 341 p. 1016