Opinion
November 5, 1920.
Milton Mayer of counsel [ Goodman Block with him on the brief], for the appellant.
Frederic S. Barnum, for the respondent.
Present — CLARKE, P.J., LAUGHLIN, DOWLING, SMITH and GREENBAUM, JJ.
While we agree with the Special Term that the contract sued upon was not within the Statute of Frauds (Pers. Prop. Law, § 31, subd. 1), we think the complaint was defective in failing properly to allege performance of the contract on the part of the plaintiff. The allegation is that "plaintiff * * * has performed the same fully and entirely complying with all the conditions on his part to be performed." By section 533 of the Code of Civil Procedure it is made unnecessary to plead the facts constituting performance, but the party must allege generally that he has duly performed all the conditions of the contract on his part to be performed. This word has been held to be one of substance and not of form. ( Clemens v. American Fire Ins. Co., 70 App. Div. 435; Gansevoort Bank v. Empire State Surety Co., 117 id. 455; Hilton Dodge Lumber Co. v. Sizer Co., 137 id. 661.)
For failure, therefore, either to allege the facts constituting performance or to comply with section 533 of the Code of Civil Procedure, the plaintiff's complaint is defective and the order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave, however, to the plaintiff to serve an amended complaint upon payment of said costs.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to serve an amended complaint on payment of said costs.