Schaaf v. Chotzen — 85 N.Y.S. 1026

Majority

p. 1026

SCHAAF v. CHOTZEN.

(Supreme Court, Appellate Term.

January 7, 1904.)

Headnote

1 Action on Contract—Allegation of Performance—Variance.

Where a plaintiff, suing on a contract, alleges performance, he cannot prove sickness as an excuse for nonperformance.

. Appeal from Municipal Court, Borough of Manhattan, Tenth District.

Action by Max Schaaf against Heinrich Chotzen. Judgment for plaintiff, and defendant appeals.

Reversed.

Argued before FREEDMAN, P. T., and GILDERSLEEVE and GREENBAUM, JJ.

Einstein, Townsend & Guiterman, for appellant.

I. J. Dutton, for respondent.

The plaintiff sued upon a contract and alleged performance. Instead of proving performance, as the law required him to do, he proves sickness as an excuse for nonperformance. Judgment was rendered for the plaintiff upon the ground that he had complied with the obligations of his contract. The judgment is clearly against the weight of evidence, and violates a well-settled rule of law.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.