REAL ESTATE DIRECTORY & INFORMATION BUREAU v. TURNER.
(Supreme Court, Appellate Term.
February 7, 1908.)
Contracts—Action iob Breach—'Variance—Right to.
Where, In a suit on a contract, plaintiff pleads full performance on his part, he may not recover on the theory that his breach of certain terms was waived by defendant.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 11, Contracts, § 1732.]
Appeal from Municipal Court, Borough of Manhattan, Sixth District.
Action by the Real Estate Directory & Information Bureau against Ernest A. Turner. Erom a judgment dismissing the complaint, plaintiff appeals. Affirmed.
Argued before GIEDERSLEEVE, P. J., and SEABURY and GERARD, JJ.
Joseph Day Eee, for appellant.
Ferguson & Ferguson, for respondent.
PER CURIAM.
The plaintiff pleaded full performance of the contract upon its part. The evidence shows that strictly it did not perform all the terms of the contract. It may be that the terms of the contract, which were not performed by the plaintiff, were waived by the defendant’s acceptance of subsequent-service by the'plaintiff. It is well settled that a party cannot recover upon the theory of a waiver under an allegation of perfonnance in his pleading.
The complaint was, therefore, properly dismissed at the close of the case, and the judgment appealed from is affirmed, with costs.