Marcus Contracting Co. v. Weinbros Real Estate Co.

Majority

p. 576

MARCUS CONTRACTING CO. v. WEINBROS REAL ESTATE CO.

(No. 5751.)

(Supreme Court, Appellate Division, First Department.

May 15, 1914.)

Headnote

Contracts (§ 335^[1] )'—Actions for Breach — Pleading — Performance by Plaintiff.

The plaintiff, in an action for the amount under a contract for shoring up a building, was required to allege performance on its part, either by alleging in detail what it had done, or by a general allegation, as permitted by Code Civ. Proc. § 533, that it had “duly” performed all the conditions on its part; and an allegation that it had “actually” performed was insufficient, and the complaint failed to state a cause of action.

[Ed. Note.—Fot other cases, see Contracts, Cent. Dig. §§ 1664r-1676; Dec. Dig. § 335.*]

Appeal from Special Term, New York County.

Action by the Marcus Contracting Company against the Weinbros Real Estate Company. From an order denying its motion for judgment on the pleadings, the defendant appeals.

Reversed, and motion granted.

Argued before INGRAHAM, P. J. and McLAUGHLIN, CLARKE, SCOTT, and HOTCHKISS, JJ.

Leo Levy, of New York City, for appellant.

Joseph Rubin, of New York City, for respondent.

The action is for the amount claimed to be due to plaintiff under a contract for shoring up a building. In such an action it is necessary that plaintiff should allege performance on its part. This it might do either by alleging in detail what .it had done under the contract, or by adopting the more convenient method, authorized by section 533, Code of Civil Procedure, of alleging that it had “duly” performed all the conditions of the contract on its part. In the present case the plaintiff has adopted neither method of pleading performance, but has alleged that it did “actually” perform and carry out"all of the terms, covenants, and conditions in said agreement contained on its part. This is not equivalent to an allegation that it “duly” performed. Feuerstein v. German Union Fire Ins. Co., 141 App. Div. 456 , 126 N. Y. Supp. 201 ; Rosenthal v. Rubin, 148 App. Div. 44 , 132 N. Y. Supp. 1053 . The complaint, therefore, contains no sufficient allegation of the performance on plaintiff’s part, and consequently fails to state a cause of action.

Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs, with leave to plaintiff to amend its complaint within 20 days upon payment of such costs. All concur.