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eBook details

• Title: Fred C. Abinet v. Gasper Mediavilla
• Author : Supreme Court of New York
• Release Date : January 09, 1957
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 62 KB

Description

[5 A.D.2d 679 Page 679] In an action to foreclose a mechanic's lien, the appeal is from a judgment of the County Court, Suffolk County (designated
in the notice of appeal as an order and judgment), dismissing the complaint on the merits, directing cancellation of the lien,
and awarding costs to respondent. Judgment modified by striking from the first ordering paragraph the words "on the merits"
and by substituting therefor the words "without prejudice" and by striking from said judgment the second ordering paragraph.
As so modified judgment unanimously affirmed, without costs. In our opinion, the learned Trial Judge properly ruled that appellant
was required to plead and prove the written contracts between the parties and facts showing either excuse for his nonperformance
thereof or respondent's waiver of the terms and conditions thereof (Robinson v. Chinese Charitable Assn., 47 App. Div. 69;
Paturzo v. Shuldiner, 125 App. Div. 636). The mere allegation of performance is insufficient to support proof that performance
was waived (Burr v. Union Sur. & Guar. Co., 86 App. Div. 545; [5 A.D.2d 679 Page 680]

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