
    Charles O. Perry, Appellant, v. Newman Erb, Respondent.
    (City Court of New York, General Term,
    December, 1897.)
    Offer and acceptance — Arbitration ás a condition precedent.
    Where, upon a settlement of a claim against the property of his ■ wife, a husband offers to pay a certain sum and the claimant accepts .it,1 reserving, however, the claim of a third person which is stated to be “ subject to arbitration,” the claimant cannot recover the item of the husband where no arbitration has been had,- nor can he recover at all where the facts tend to show that the arbitration, in view, was to be had, not between the husband and the claimant but between the claimant and the person who had furnished the goods to the house.
    Appeal from a judgment dismissing the complaint at the close of all the testimony:
    Otis & Pressinger, for appellant.
    Stern & Rushmore, for respondent.
   Conlan, J.

The action is brought to recover the amount of a disputed item in an account between the plaintiff and one Theresa Erb, the wife of the defendant, and which, it is claimed, the defendant became liable to pay upon an agreement for the adjustment and settlement of accounts between the original parties to the transaction. The contract was for the cost of certain alterations and repairs to a house owned by Theresa Erb, and the amount, due was finally adjusted at the sum of $10,600, which the defendant agreed to pay in installments, and did pay them as they severally became due. There was, moreover, in addition to this sum of $10,600, an item of $315 for making and furnishing certain bookcases, and under the terms of settlement it is referred to iñ an exhibit, introduced in evidence by the plaintiff, in the following language: “ Except item of $315, claim of Schacteler; ” and, subsequently, the plaintiff wrote the defendant with reference to this very item in the following significant language: “On accepting offer to compromise and pay the original claim and an item of $315' of Mr. Schacteler’s bill for bookcases in library, which is subject to arbitration.” So, that we have the defendant agreeing to pay the claim at the compromised amount, except item of $315, claim of Schacteler, and the plaintiff’s acceptance of the proposition in the language quoted above, as to the item in dispute.

Mow, before any action could be maintained by the plaintiff as regards this particular item of $315, there was a condition precedent to be performed, and this upon the plaintiff’s own construction of the alleged contract, and it became necessary to prove that arbitration had ensued or been offered before the action could be maintained.

If, as plaintiff contends, the arbitration was one to be had between the defendant and Schacteler, there was to be no liability until such arbitration had actually taken place or had been offered, and the proof was the same as in the former instance, and failure to present such proof tended to defeat the right of the plaintiff to recover against the defendant in this action. But we do not think that the evidence warranted the interpretation insisted upon by the plaintiff. Why should the defendant be subjected to the vexations and expense of arbitration concerning an item which he had especially excepted from the terms of settlement and to which the plaintiff had agreed, as seen by his letter accompanying the defendant’s proposition for payment?

The language used was as forcible as it were possible to employ, yet" we are asked to say that notwithstanding this very exception, the defendant was still to assume liability for Schacteler’s claim.

If, therefore, the item was excepted- by the defendant, is it not more reasonable to suppose that its dispute was to become a matter of arbitration between the plaintiff and Schacteler, for the defendant had not expressed any wish .or intention of arbitrating it with any one. The dispute presented-by the evidence upon this precise point was not of such a character as called for the consideration of the jury.

We think the case was correctly disposed of by the trial justice on the motion to dismiss the complaint. -

The judgment, must, therefore, be affirmed, with costs.

O’Dwyer,' J., concurs.

Judgment affirmed, with - costs.  