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WINTER & GIORDANO LANDSCAPE CONTRACTING CORP. v. COLAIZZO

17 Misc.2d 450 (1959)

Winter & Giordano Landscape Contracting Corp., Respondent, v. Frank Colaizzo et al., Appellants.

Supreme Court, Appellate Term, Second Department.

January 20, 1959.

Attorney(s) appearing for the Case

Joseph Ettinger for appellants.

George H. Hamilton and A. E. Nowack for respondent.

Concur — PETTE, DI GIOVANNA and BROWN, JJ.

Per Curiam.

While it is true that defendants in their answer should have denied the allegation of due performance with particularity, as required by rule 92 of the Rules of Civil Practice, it is also true that plaintiff could not plead a cause of action founded on due performance and recover a judgment on the theory of defendants' waiver of performance. (Gorman v. Metropolitan Life Ins. Co., 158 App. Div. 682...

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