Klein v. De Voe Park Realty Corp.

Judgment dismissing complaint at close of plaintiff’s case reversed upon the law, and new trial granted, with costs to appellant to abide the event. We are of opinion that it was obligatory upon defendants to go further than to show that plaintiff was a party to the composition agreement. It was incumbent upon defendants to show their compliance with and performance of the agreement, or that it still continued as an executory agreement for good and *757legal reasons. We are also of opinion that it was error to preclude plaintiff from proving non-compliance on the part of defendants with the terms of the agreement. Kelly, P. J., Manning, Kapper, Lazansky and Hagarty, JJ., concur.