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Realty Merchantile Credit Ass'n v. Menger

152 N.Y.S. 1045 Court Argued March term, 1915, before LEHMAN, HENDRICK, and COHALAN, JJ. Decision date 1915-05-11 English

Delivered by LEHMAN, J.

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p. 1045
REALTY MERCANTILE CREDIT ASS’N v. MENGER et al.
(Supreme Court, Appellate Term, First Department.
May 11, 1915.)

Headnote

Contracts <§=>332—Conditions—Performance.
In an action on contract, a complaint that fails to set forth any agreement binding on plaintiff, or to aver due performance of any conditions or covenants, is demurrable.
[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1615-1639; Dec. Dig. <§=>332.]
Appeal from Municipal Court, Borough of Manhattan, Ninth District.
Action by the Realty Mercantile Credit Association against John Menger and others. From a judgment for plaintiff, rendered upon an
p. 1046
inquest after defendants’ demurrer to plaintiff’s written complaint, defendants appeal. Reversed, and demurrer sustained, with leave to serve an amended complaint.
Argued March term, 1915, before LEHMAN, HENDRICK, and COHALAN, JJ.
Herman Kahn, of New York City, for appellants.
Samuel Korn, of New York City, for respondent.

The complaint fails to set forth any agreement binding upon the plaintiff, or accepted or signed by it, and also fails to allege due performance of any conditions or covenants. The demurrer should therefore have been sustained.

Judgment reversed, with costs, and demurrer sustained, with leave to plaintiff to serve an amended complaint upon payment of costs within six days after entry of this order in the Municipal Court, and notice of such entry. All concur.