
    Jabob Marx and Louis Ordo, Partners, Doing Business Under the Firm Name of Marx & Ordo Company, Plaintiffs, v. Talking Doll and Novelty Company, Inc., Defendant.
    (Supreme Court, Kings Special Term for Motions,
    September, 1916.)
    Actions — to recover damages — contracts — pleading—.Code Civ. Pro. § 533 — waiver.
    In an action to recover damages for a breach of contract, it is sufficient to allege generally that plaintiff has duly performed all the conditions on his part.
    An allegation that plaintiffs had performed and complied with each and every of the terms- of the agreement on their part to be performed is not equivalent to an allegation that they have “ duly ” performed the agreement on their part, and is not sufficient under section 533 of the Code of Civil Procedure.
    An allegation of the complaint in an action to recover damages for breach of contract to sell to plaintiffs not less than 250 talking machines a month beginning in September, 1915, for which they agreed to pay cash upon delivery and were given the exclusive license to sell the machines in a certain territory except to certain specified dealers, and that plaintiffs were ready, willing and able to receive and pay for said machines and had demanded the delivery thereof, was a sufficient allegation of performance on their part; the provision not to accept orders from certain specified dealers was not a condition precedent within said section 533 and the provision that plaintiffs would pay for the machines on delivery was a dependent condition.
    • Where the complaint pleaded a notice given by defendant that it would he- unable to deliver any of the machines before November, said notice amounted to" a waiver of defendant’s right to require a tender by plaintiffs • and it was unnecessary for plaintiffs to plead either performance or tender.
    Motion for judgment on the pleadings.
    
      Robert C. Birkhahn, for motion.
    Jonas, Lazansky & Neuburger, opposed.
   Cropsey, J.

Defendant moves for judgment on the pleadings. The action is to recover damages for breach of a contract which is attached to and forms a part of the complaint. Under it, the defendant agreed to sell to the plaintiffs talking machines, the minimum number to be not less than 250 per month, beginning in the month of September, 1915. For these the plaintiffs agreed to pay cash upon delivery; the plaintiffs were also given exclusive license to sell the machines on Long Island, with the exception of certain specified dealers, and they agreed not to convass or accept orders from those dealers.

The only point raised by defendant is that the complaint does not allege that the plaintiffs have duly ” performed all the conditions of the contract on their part. The complaint does not contain such an allegation. It contains the allegation that “ Plaintiffs have performed and complied with each and every of the terms of said agreement on their part to be performed.” If an allegation that plaintiffs have .duly ” performed on their part is necessary in this complaint, the allegation quoted is not sufficient as it is not an equivalent. Code Civil Pro. § 533; Ainsworth v. Acheson Harden Co., 158 N. Y. Supp. 630; Hedges v. Pioneer Iron Works, 166 App. Div. 208.

, But is such an allegation necessary? Section 533 -provides, that in pleading the performance of a condition-precedent it is not necessary to state the facts constituting performance, but the statement may be made -that' the party has duly performed on his part. If the facts showing preformance on the part of the plaintiffs are pleaded, an allegation that they have duly performed all the conditions on their part would be superfluous.

Here the complaint alleges that the plaintiffs were at all times ready, willing and able to receive and pay for the said machines, and demanded the delivery thereof.” The only obligations assumed by the plaintiffs under the contract were to pay for the machines upon delivery, and not to accept orders from certain specified dealers. The latter provision clearly was not a condition precedent to the performance of the contract, and consequently plaintiffs would riot have to plead a compliance with it. The provision that the plaintiffs would pay for the machines on delivery was a dependent condition. The complaint states that the plaintiffs demanded the delivery of the machines and were ready and able to receive and pay for them. This seems to be a sufficient allegation of performance on their part.

Even if this were not so, there is another reason Why the complaint states a good cause of action. The contract calls for the delivery of a certain number of machines each month, beginning with September, 1915. The complaint alleges that the machines to be delivered in September and October were not delivered, and that in October the defendant notified the plaintiffs that it would be unable to deliver any of the machines until November. After the receipt of that notice, plaintiffs notified the defendant that they would not receive any of the machines, and brought suit to recover their damages.

The notice given by defendant, that it would be unable to.deliver any of the machines before November, made it unnecessary for the plaintiffs to tender performance on their part. This notice, excusing the tender, amounted to a waiver of defendant’s right to require a tender by the plaintiffs, and having been pleaded in the complaint it was unnecessary for the plaintiffs to plead performance or tender. Shaw v. Republic Life Ins. Co., 69 N. Y. 286; Robinson v. Frank, 107 id. 655; Stokes v. Mackay, 147 id. 223, 234; Reed v. Provident S. L. A. Soc., 190 id. 111, 120.

Motion for judgment denied', with ten dollars costs.  