37 N.Y.S. 980 | N.Y. Sup. Ct. | 1896
Demurrer to the second defense. This action is brought against the defendant to recover a proportionate amount
I am of the opinion that the' demurrer must be sustained. The condition precedent set up in the second defense requires plaintiff to bring an. action at law upon a contract against certain persons who never were parties to' the contract, and never, by devolution, assumption, novation or otherwise, assumed any obligation thereon; that is, it requires the plaintiff to bring an action against persons against whom he has no cause of action. This provision is against pubEc policy, and, therefore, void. This case is to be distinguished from that class of cases in which the obtaining of the certificate of an architect or engineer as to the amount and value of the work done is made a condition, precedent to the commencement of an action. Such conditions precedent were before the courts in
The demurrer is sustained, with costs.-
Demurrer sustained, with costs.