
    Charles A. Hall, Respondent, v. Robert F. Little, also Known as R. Forsyth Little, Jr., Appellant.
    
      Pleading — a complaint on a guaranty, not alleging the performance of the condition prescribed thereby, is demurrable.
    
    R. Forsyth Little, Jr., executed the following instrument of guaranty: “ In consideration of Elmer E. Cooley refraining from entering judgment against Caroline W. Whiton for a period of ten days, I hereby guaranty the payment of the note sued upon in which he is the plaintiff, and Caroline W. Whiton is the defendant, and upon which there is now due the sum of $1,200.00 with interest from November 18th, 1900, and in and for the same consideration, I hereby guaranty to the holder of the note made by Caroline W. Whiton, bearing date the 6th day of July, 1900, for $1,750.00 and interest, payments on the said notes to he made as follows: ”
    
      Held, that the complaint in an action brought against Little upon the guaranty to recover the amount of the $1,750 note, which did not allege that Cooley had refrained from entering judgment on the $1,200 note for the ten days provided in the guaranty, was demurrable;
    That an allegation that the $1,200 note had been paid was not equivalent to an allegation of compliance with the condition respecting the refraining from the entry of judgment.
    Appeal by the defendant, Robert F. Little* also known as R. Forsyth Little, Jr., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, bearing date the 14th day of October, 1903, and entered in the office of the clerk of the county of New York, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint»
    
      
      R. Forsyth Little, Jr., appellant, in person.
    
      Elmer E. Cooley, for the respondent.
   Van Brunt, P. J.: .

Amid the mass of evidentiary matter set out in this complaint it is somewhat difficult to determine, in many instances, whether the pleader intends to allege a fact or merely evidence. It may be assumed, perhaps, that the plaintiff desired to recover the amount of a note made by one Caroline W. Whiton for $1,750, and interest, such right of recovery being based upon an instrument of guaranty reading as follows:

“ In consideration of Elmer E. Cooley refraining from entering judgment against Caroline W. Whiton for a period of ten days, I hereby guaranty the payment of the note sued upon in which he is the plaintiff, and Caroline W. Whiton is the defendant, and upon which there is now due the sum of $1,200.00 with interest from November 18th, 1900, and in add for the same consideration, I hereby guaranty to the holder of the note made by Caroline W. Whiton, bearing date the 6th day of July, 1900, for $1,750.00 and interest, payments on the said notes to be made as follows:
$1,200.00 with interest from the 18th day of November, 1900, on January 4th, 1901, and on January 15th, 1901, the sum of $1,750.00'with interest from the 6th day of November, 1900.
■“In witness whereof I have hereunto set my hand and seal this 26th day of December, 1900.
“R FORSYTH LITTLE, JR.’’

It will be observed that this instrument of guaranty related to two notes, one for $1,200, and one for $1,750 ; that suit had been commenced upon the $ 1,200-note; and that the'consideration for the guaranty was the refraining by the plaintiff from entering judgment in the action on the $1,200-note for a period of ten days. Nowhere in the complaint is there any allegation that this condition precedent mentioned in the guaranty has been complied with; and this is claimed by the defendant to be a fatal defect in the com- ' plaint. The complaint does contain an allegation, or rather an insinuation, that this note has been paid by the defendant. This, however, is not equivalent to an allegation that there was a refraining from the entry of judgment for the period mentioned in the guaranty and which formed its sole and only consideration.

In order to recover upon any contract, it is incumbent upon the plaintiff to allege and prove performance of the contract upon his part. In the complaint under consideration we fail to find any allegation to this effect. The pleader seems to have supposed that, because he had alleged the payment of the $1,200-note, such allegation was sufficient. But this fact had no bearing upon the question as to whether or not the plaintiff had extended the forbearance forming the consideration of the guaranty.

The complaint seems, therefore; to be defective; and the interlocutory judgment should be reversed, with costs of this appeal, and the demurrer sustained, with costs, with leave to the plaintiff to amend his complaint upon the payment of the costs of this appeal and the costs of the demurrer.

Patterson, Ingraham, Hatch and Laughlin, JJ., concurred.

Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend complaint • upon payment of costs of this appeal and costs of demurrer.  