Opinion
December 19, 1961
Order entered on September 22, 1961, denying defendant's motion to dismiss the complaint pursuant to rule 106 of the Rules of Civil Practice, unanimously reversed on the law, on the facts and in the exercise of discretion, with $20 costs and disbursements to defendant-appellant, and the complaint dismissed, with leave to plaintiff to serve an amended complaint, if advised and able so to do, that will comply with the provisions of the permission heretofore granted by this court in dismissing the original complaint ( 13 A.D.2d 449). We held that the terms of the bonds made "the satisfaction of the respective obligees a condition precedent to the accrual of the plaintiff's rights and the failure to plead fulfillment of such condition is fatal to the complaint". The amended complaint does not unequivocally and specifically allege that the obligees' rights under the bond have been satisfied; nor do the facts alleged, assuming they are capable of being proved, necessarily constitute such satisfaction. Settle order on notice.
Concur — Botein, P.J., Rabin, McNally, Eager and Steuer, JJ.