Contracts · MBE-tested
Aulda J. Trembath, Respondent, v. Charles M. Berner, Appellant, Impleaded with Another, Defendant
208 A.D. 822·New York Supreme Court, Appellate Division·1924·NY
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Opinion
Third Department,
March, 1924.
Aulda J. Trembath, Respondent, v. Charles M. Berner, Appellant, Impleaded with Another, Defendant.
Contracts — action for breach — pleadings — plaintiff must allege readiness and ability to perform — recovery cannot be had where plaintiff alleges his inability to perform.
Appeal from a judgment of the Supreme Court, entered in the Delaware county clerk’s office June 7, 1923, upon the decision of the court.
[MAJORITY — Per Curiam:]
Per Curiam:
The plaintiff having failed to allege readiness and ability on his own part to perform the contract in question, and on the contrary having alleged his own inability to perform it, may not maintain this action to recover from the defendant because of his failure to perform. All concur. Judgment reversed on the law, and complaint dismissed, with costs.