Opinion
Argued October 11, 1901
Decided October 18, 1901
J. Sanford Potter for appellant.
O.A. Dennis for respondents.
The pleadings do not permit the appellant to raise the objections to the plaintiffs' recovery which have been argued on this appeal. The complaint alleges that the defendant accepted said conveyance, "and promised to perform the stipulations and covenants" contained in the lease made by the plaintiffs' grantor to the defendant's grantor. The conveyance to the defendant is not set forth and, therefore, the allegation cited from the complaint must be considered as an averment of fact, not as a conclusion of law. The appellant, by not denying this allegation in his answer, has admitted it, and could not on the trial, nor can he now on appeal, avoid the effect of such admission.
The judgment appealed from should be affirmed, with costs.
PARKER, Ch. J., GRAY, BARTLETT, MARTIN, VANN, CULLEN and WERNER, JJ., concur.
Judgment affirmed.