Case v. Phœnix Bridge Co. — 10 N.Y. St. Rep. 474

Majority

p. 474

Margaret A. Case, Resp’t, v. The Phœnix Bridge Co., App’lt.

(New York Superior Court, General Term,

Filed June 24, 1887.)

Headnote

Pleading- performance of a condition precedent in contract—Code Cry. Pro,, § 533.

Under section 533, Code of Civil Procedure, in pleading the perform* anee of a condition precedent in a contract, it is not necessary to state the facts constituting performance, hut the party may state generally that he duly performed all the conditions on his part

Appeal from interlocutory judgment entered upon order overruling defendant’s demurrer to the complaint, and from such order.

Thomas G. Shearman, for app’lt; Edward S. Clinch, for resp’t.

The part of the complaint demurred to, averred that the plaintiff and defendant entered into an agreement whereby plaintiff was to sink one hundred and fifty-four iron pipes into the sand for an iron pier, and to do other work with iron, in and about parts of the structure of the pier. That the defendant agreed to pay to the plaintiff $27.50 for each pile sunken, and deliver all iron which the plaintiff was to work upon under the contract, at the site of the pier, as rapidly as the progress of the work required, and to lay the floor of the pier as fast as practicable. That plaintiff duly performed all the conditions of this contract on her part, but defendant failed to deliver the iron, as required by the contract, in proper form or adapted to said work, or in sufficient quantity, or as rapidly as the progress of the work required, and also failed to lay the floor of the pier as fast as it was practicable to lay it, and that in consequence of such failure the plaintiff was delayed in the performance of her contract fifty-five days, and was obliged to pay men as for their working time, in waiting, etc., to her damage $4,299.

The first objection to this is that it does not aver that performance by defendant was demanded by plaintiff or that notice was given to defendant by plaintiff that the state of the work required performance by defendant of his obligation under the contract. It is not necessary to

p. 475

decide now that such demand or notice should have been made or given. If they should, they were in the nature of conditions precedent to liability on the part of the defendant. Under section 533 of the Code of Civil Procedure, in pleading the performance of a condition precedent in a contract, it is not necessary to state the facts constituting performance, but the party may state generally that he duly performed all the conditions on his part, and in this complaint the plaintiff has averred due performance of all conditions of the contract on her part. This objection cannot be sustained.

The other objection is that the complaint does not show any actual damage to the plaintiff from the acts complained of. In obeying section 519, by liberally construing the allegations of the complaint with a view to substantial justice between the parties, we may find in the complaint what will apprize the defendant that the plaintiff intends to prove that after she had duly proceeded with the work, as called for by the contract, she notified the defendant to furnish more pipe and iron, with which she could further proceed to perform her contract, that they did not furnish these within a reasonable time, but kept her and the force she had under pay waiting for an unreasonable time for the pipe and iron, and that she was obliged to pay so much more wages than she would have been if the defendants had performed their obligation within a reasonable time.

The judgment and order should be affirmed, with costs.

Freedman, J., concurs.