
    The Central Gas & Electric Fixture Co., Resp’t, v. August Kohn, App’lt.
    
      (City Court of New York, General Term,
    
    
      Filed November 25, 1892.)
    
    Guaranty—Consideration.
    Defendant, in consideration of one dollar paid and of $110 to be paid by plaintiff to him, guaranteed the payment to it by one C. of a cenain sum for fixtures when hung, and agreed to pay the same on a specified day unless C. paid the same. C. failed to have the building in condition to permit plaintiff to finish the work at the time specified, but subsequently nearly all the fixtures were hung. The $110 were offered to defendant six months after the guaranty was made, but were not left with him. Held, that defendant was not released from liability by these facts, and that a recovery by plaintiff was proper.
    (Newburqer, J., dissents.)
    Appeal from judgment in favor of plaintiff, entered upon verdict.
    
      Wm. J. Lippman, for app’lt; Birdseye, Cloyd & Bayliss, for resp’t.
   Fitzsimons, J.

The plaintiff agreed with one Carey on April 15, 1891, to furnish and hang certain gas fixtures in house at One Hundred and Fourth street and Eighth avenue for the sum of $1,350, to be completed May 1, 1891.

■ On April 16, 1891, the following agreement was made by defendant with plaintiff.

“ In consideration of the sum of one dollar to me in hand paid by the within named Central Gas & Electric Fixture Company, the receipt of which is admitted, and of the sum of $110 to be paid to me,- and of other good and sufficient considerations, me hereunto moving, I hereby guarantee the payment of the within named sum of $1,350 by the said Carey to the said company for said fixtures when hung as therein stated, and promise and agree to pay the same to the said company on the 15th day of May, 1891, unless the said Carey shall, on or before said date, pay the same to the said company in full.”

The failure of Carey to have the buildings mentioned in a condition so as to permit plaintiff to hang the fixtures on or before May 1st, and the fact that such fixtures were only partially put up at that, and that subsequently nearly, all the remainder were placed in position, does not free defendant from his obligation to pay therefor; that was the fault of Carey, not the fault of plaintiff

Plaintiff is entitled to a recovery against defendant, even though the contract made with Carey was only ■ substantially performed.

The plaintiff was not required to actually pay the $110 mentioned in the guarantee to defendant before he received the $1,350 provided for in such guarantee.

The performance of these several acts were independent of each other, and it was only necessary for plaintiff to tender said $110 at most; the defendant was then required to perform his part of the contract; his failure to do so entitled plaintiff to institute against him this cause of action..

We find no error. Judgment affirmed, with costs.

Ehrlich, Ch. J., concurs in result.

Newburger, J.

(dissenting)—This is an appeal from a judgment entered upon a verdict in favor of the plaintiff.

The plaintiff, in writing, offered to place gas fixtures in certain apartment houses in this city, which offer was accepted by the then owner, one John J. Carey. Subsequently the defendant executed a guarantee as follows:

“In consideration of the sum of one dollar to me in hand paid by the within named Central Gas & Electric Fixture Company, the receipt of which is admitted, and of the sum of $110.00 to be paid to me, and of other good and sufficient considerations me hereunto moving, I hereby guarantee the payment of the within sum of $1,350.00 by the said Carey, to the said company, for the said fixtures when hung as therein stated, and promise and agree to pay the sum to the said company on the 15th day of May, 1891, unless the said Carey shall on or before the said day, pay the sum to the said company in full.”

On the trial of this action, at the close of plaintiff’s case, defendant moved to dismiss the complaint on the ground, among others, of the invalidity of the tender made by the witness Coles on behalf of the defendant, which motion was denied and exception taken.

It appears that the guarantee was signed and delivered on or about the 16tli day of April, 1891, and that the sum of one hundred and ten dollars ($110.00) agreed to be paid by plaintiffs to the defendant was not then paid.

On October 13, 1891, more than six months thereafter, Coles offered the defendant $110 in greenbacks, and asked the defendant to carry out his contract. -

He did not leave the $110 with the defendant, although said defendant was willing to accept the sum.

The complaint should, therefore, have been dismissed.

, Before the plaintiff can recover, it is necessary for it to show that the consideration referred to in the guarantee was fully paid, and as it appears uncontradicted that the amount of the consideration referred to in the guarantee was not paid, the trial justice erred in denying defendant’s motion.

For these reasons the judgment must be reversed, a new trial ordered, with costs to abide the event.

Judgment affirmed, with costs.  