#### Emily H. C. Jacocks, Respondent, *v.*Lewis J. Morrison, Appellant.

First Department,

December 11, 1908.

Contract — pleading — failure to allege performance of condition precedent.

Where the defendant agreed with the plaintiff’s assignor to cause to be conveyed to him fifteen acres of land owned by a certain corporation, to be selected by the assignor “out of one of the plots owned by said company ” or, in default of such conveyance, to pay a cash sum, a selection by the assignor of the par*285ticular plot to be conveyed is a condition precedent to an action against the defendant for the cash payment.

A complaint failing to allege the performance of such condition precedent either by the assignor or assignee is subject to demurrer. The defect is not cured by a mere allegation that a demand was duly made by the assignee after the assignment of the contract.

Appeal by the defendant,- Lewis J. Morrison, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 4th day of June, 1908, upon the decision of the court, rendered after a trial at the *New*York Special Term, overruling the defendant’s demurrer to the amended complaint.

*Herbert R. Limburg,*for the appellant.

*Dudley Dupignac,*for the respondent.

Houghton, J.:

The complaint alleges that the defendant agreed with plaintiff’s assignor, one George M. Jacocks, that he would procure to be conveyed to him fifteen acres of land owned by the Federal Copper Company, *“to*be selected by the said George M. Jacocks *out*of one of the plots owned by the said company,” or in default of such conveyance to pay to him the sum of $3,500 in cash, and that such conveyance was not procured, and that, therefore, the $3,500 became due.

The defendant demurred to the complaint on the ground that it did not state a cause of action, and the demurrer was overruled.

The chief defect of the complaint is that it is not alleged that George M. Jacocks selected, any particular fifteen-acre plot. The complaint is fatally defective because of the omission of such an allegation. Under the contract set forth in the complaint the defendant was not liable to pay the stipulated amount until he was put in default by failure to procure conveyance. He could not be guilty of such failure until the particular plot had been selected, for selection was a condition precedent. The defect was not cured by the allegation that “ a demand was duly made by the plaintiff ” after assignment of the contract to her ; that the defendant should perform his agreement by causing such conveyance to be made because *286so far as appears from the allegations defendant did not know and could not know what particular fifteen-acre plot George M. Jaeocks or the plaintiff desired should be conveyed. If from death or incapacity George M. Jaeocks could not make the selection, such excuse should have been pleaded. If from such an event selection devolved upon the plaintiff after assignment of the contract to her the complaint should have alleged a selection on her part.

The interlocutory judgment overruling the demurrer must be reversed, with costs, and the demurrer sustained, witli costs, with leave to plaintiff to serve an amended complaint on payment of costs of this appeal and of the court below.

Patterson, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.