
    Carlo F. Salvador, Appellant, v. New York Law School, Respondent.
   The judgment entered April 4, 1949, on the aforesaid order is vacated. Defendant did not question plaintiff’s right to the debentures or its obligation to perform the conditions thereof. It has paid the interest thereon and has established a sinking fund. But a trial is necessary to determine whether there was a breach of the condition requiring the sinking fund at the time plaintiff commenced the action and whether plaintiff participated in the creation of such breach or had the right to insist on performance by defendant at the time provided by the debentures. He was one of the trustees of defendant. In his affidavit he does not state that he was not one at the time when, according to the provisions of the debentures, deposits should have been made in a sinking fund. Defendant in the affidavits on its behalf does not specifically allege that plaintiff was a trustee at that time. If he was a trustee, presumably he knew that there had been up to the time of his suit no corporate act creating a sinking fund. In the absence of any statement of what he did as a trustee to have the condition fulfilled by the defendant, it cannot be said that he did or did not aid in the breach of which he complains or waived strict compliance with the condition. If he was not a trustee, the papers on the motion fail to show any relationship or conduct on his part which barred his right to sue for the failure to make deposits strictly in accordance with the debentures, or which required him, if the time for performance had passed, to reply to a proposal for performance not in accordance with his debentures. Nolan, P. J., Johnston, Sneed, Wenzel and MaeCrate, JJ., concur.  