Berger v. Urban

207 A.D. 828 | N.Y. App. Div. | 1923

Order affirmed as to the first cause of action, and reversed upon the law as to the second cause of action, without costs to either party as against the other. Motion for stay granted, both parties to have twenty days’ time within which to plead anew. Rich, Manning, Kelby and Young, JJ., concur; Kelly, P. J., dissents from affirmance as to the first cause of action, being of opinion that the plaintiff has failed to allege due performance on his part of the condition of the contract as required by rule 92 of the rules of Civil Practice. Settle order on notice before Mr. Justice Manning.