Downs v. Lehman

(xAYNOB, J. : The rule requiring a complaint to allege performance. by the plaintiff of all conditions precedent on his part to his fight of action is ancient and undoubted. • ft lias been incorporated in our '"code of practice by a provision that,such requirement is sufficiently complied, with by a general allegation that the plaintiff “ duly performed all the conditions on his part ” (Code Civ. Proc. § 533). But the clause of this contract that the title is to be approved by the title insurance company imposes no condition on the plaintiffs’, part.. The title has to be ¿xámined by the defendant — by- the purchaser* not- by the sellers—and the meaning is that the said title-company is to do it for him, if he chooses, and that he is not' to be obliged to take- the title unless it approves.of it. It is a thing not uncommon for a purchaser of - land, or of municipal bonds, and the like, to put in the ' contract of purchase a condition that title or validity is to be subject •to the approval of a (counsel named. That is-not a condition precedent oil the seller’s part, i. e.,- for him to. perform, or to be performed on his part. It is for the purchaser to have such counsel ex'amine the title and approve or disapprove before, the contract day, and that lie disapproves is a defence to be pleaded. It is for the purchaser to object 'to title on the contract day on the ground of. such disapproval, and failure to do so is a waiver. The. seller may not even know that the counsel examined the title .at all (and. he may iiot have -done so), much less be able to plead that lie approved it. A plaintiff is only obliged to allege performance [13] of conditions precedent on his part, i. e., to be performed on Iris part, and-not conditions to be performed by the' defendant, or which depend on him for performance (McManus v. Western Assurance Co., 43 App. Div. 550). The case of Flanagan v. Fox (6 Misc. Rep. 132) lias no bearing whatever on this case. Here we have only a question of pleading, while there there was no question of pleading. There the title was examined, and disapproved by the title company. designated by the contract, and the purchaser then brought the action to recover back the amount lie had paid on the contract, alleging such, disapproval in his complaint, and recovered. The judgment should be affirmed. Jenks, Hooker, Eich and Miller, JJ., concurred. Judgment affirmed, with costs..