Opinion
January 20, 1959
Appeal from the District Court of Nassau County, ROBERT C. RICHTER, J.
Joseph Ettinger for appellants.
George H. Hamilton and A.E. Nowack for respondent.
While it is true that defendants in their answer should have denied the allegation of due performance with particularity, as required by rule 92 of the Rules of Civil Practice, it is also true that plaintiff could not plead a cause of action founded on due performance and recover a judgment on the theory of defendants' waiver of performance. ( Gorman v. Metropolitan Life Ins. Co., 158 App. Div. 682; Martens v. General Foods Corp., 276 App. Div. 1053.) In the interests of justice there should be a new trial, after the parties have amended their pleadings.
The judgment should be unanimously reversed on the law and facts and a new trial ordered, with $30 costs of this appeal to the defendants to abide the event. It is intended hereby that the entire case inclusive of the complaint and the counterclaim be retried.
Concur — PETTE, DI GIOVANNA and BROWN, JJ.
Judgment reversed, etc.