Opinion
April, 1928.
Order and judgment modified by denying the motion to dismiss the complaint in so far as the first cause of action is concerned, and as so modified the order and judgment are unanimously affirmed, without costs. In coming to this conclusion the court is proceeding on the theory that the words "except such terms and conditions as she was excused from performing, as hereinbefore alleged," set forth in paragraph 9 of the complaint, are surplusage in light of the fact that no such conditions are pleaded, and, therefore, the complaint proceeds upon the theory that plaintiff was ready and willing to perform fully.
Present — Lazansky, P.J., Rich, Young, Seeger and Carswell, JJ.