Wilco Construction Corp. v. Prywes

Time was not of the essence in the contract in suit. While plaintiff in its complaint failed to allege the facts showing that it was in default on the date set forth in the contract for the passing of title and showing that such default was excusable and worked no harm on defendant, we amend the complaint to conform to the proof in these respects (Civ. Prac. Act, §§ 109, 434; Thorne Neale & Co. v. New York So. Coal Term. Corp., 270 App. Div. 816, affd. 295 N. Y. 977). Beldoek, Acting P. J., Ughetta, Christ, Pette and Brennan, JJ., concur. [29 Mise 2d 81.]