
    Alden Speare’s Sons’ Co., Plaintiff, v. Casein Co. of America, Defendant.
    (Supreme Court, New York Special Term,
    February, 1907.)
    Pleading — Complaint -or declaration — Conditions precedent — Performance or waiver. Where a complaint sets forth an agreement containing several stipulations which might or might not be construed as conditions that must be complied with before the plaintiff can put the defendant in default, a further allegation that “ all the condition.above mentioned were fulfilled or were waived by the defendants ” determines the character of such'conditions and requires that the facts constituting performance and waiver should be alleged; and, in the absence of such allegations, a demurrer to said complaint should be sustained.
    Demubbeb to complaint.
    Carter & Haskell, for plaintiff.
    Gillespie & O’Connor, for defendant.
   Blanchard, J.

The agreement set forth in the complaint contains several stipulations which- might or might not be construed as conditions which must be complied with before the plaintiff could put the .defendant in default. The complaint then alleges that “ all the conditions above mentioned were fulfilled or were waived by the defendants.” This allegation determines the character of the stipulations mentioned, and requires that the facts of performance and of waiver be alleged without qualification and by an averment of the facts constituting such performance and waiver. Todd v. Union Casualty & Surety Co., 70 App. Div. 52; Pope Mfg. Co. v. Rubber Goods Mfg. Co., 110 id. 341; Smith v. Brown, 17 Barb. 431. Since the complaint is defective the demurrer thereto on the ground that it fails to state a cause of action is sustained.

Demurrer sustained.  