
    HALLADAY, Respondent, v. NICHOLAS et al., Appellants.
    (Common Pleas of New York City and County, General Term.
    December 2, 1895.)
    Action by William Halladay against H. I. Nicholas and others. A judgment of the general term of the city court (29 N. Y. Supp. 1144) affirming a judgment entered on a verdict in favor of plaintiff was reversed (34 N. Y. Supp. 104), and plaintiff moves for leave to appeal to the court of appeals.
   PER CURIAM.

The question of the right of the plaintiff to recover depended upon the construction of an agreement the terms of which were not disputed. The defendants agreed to hold a deposit of checks or money made by a third party until July 15, 1893, and on that day to pay over; but the payment was conditional upon a certain consolidation and issue of bonds specified in another paper. Such consolidation and issue did not take place until the month of August thereafter, and meanwhile the depositor countermanded payment to the plaintiff. We held the plaintiff not entitled to recover. The question of time, being of the essence of the contract, cannot arise in this case as between the depositories and the plaintiff. As between them, the plaintiff, if entitled to the money at all, was entitled to it on July 15th, that being the agreement; but, as the condition was not fulfilled, he was not so entitled, and cannot recover, there being no other enforceable agreement of the defendants. Motion denied, with $10 costs.  