While we agree with the Special Term that the contract sued upon was not within the Statute of Frauds (Pers. Prop. Law, § 31, subd. 1), we think the complaint was defective in failing properly to allege performance of the contract on the part of the plaintiff. The allegation is that “plaintiff * * * has performed the same fully and entirely complying with all the
For failure, therefore, either to allege the facts constituting performance or to comply with section 533 of the Code of Civil Procedure, the plaintiff’s complaint is defective and the order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave, however, to the plaintiff to serve an amended complaint .upon payment of said costs.
Present — Clarke, P. J., Laitghlin, Dowling, Smith and Greenbatjm, JJ.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to serve an amended complaint on payment of said costs.