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Lexington Sheet Metal Works v. Libman Contracting Co.

147 N.Y.S. 1123 Court N.Y. App. Term Decision date 1914-05-07 English

Delivered by PAGE, J.

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p. 1123
LEXINGTON SHEET METAL WORKS v. LIBMAN CONTRACTING CO.
(Supreme Court, Appellate Term, First Department.
May 7, 1914.)

Headnote

Appeal from Municipal Court, Borough of the Bronx, Second District. Action by the Lexington Sheet Metal Works against the Libman Contracting Company. From a judgment for plaintiff, defendant appeals. Reversed, and complaint dismissed. House, Grossman & Yorhaus, of New York City, for appellant. Julius D. Tobias, of New York City, for respondent.

The complaint did not sufficiently allege performance (Code of Civil Procedure, § 533; Rosenthal v. Rubin, 148 App. Div. 44 , 132 N. Y. Supp. 1053 , and cases cited), nor did the plaintiff prove performance of the contract according to the terms thereof. Judgment reversed, with costs, and complaint dismissed, with costs, without prejudice to. a new action. All concur.