
    Charles H. Smith, Pl’ff, v. Matilda F. Lockwood et al., Ex’rs, Def’ts.
    
      (New York Superior Court, General Term,
    
    
      Filed May 2, 1892.)
    
    Contract—Performance—Non-acceptance op work.
    Defendant’s testator agreed to deliver certain stock to plaintiff, the last to be given when certain work was turned over to and accepted by a company. Held, that the fact that the work had never been accepted was no defense to an action to enforce such agreement, where it appeared that testator had assigned the contract to a third person and procured a release from the company.
    Defendant’s exceptions ordered to be heard in first instance at general term.
    
      G. L. Cheney, for pl’ff; L. L. Van Allen, for def’ts.
   Per Curiam.

The testator in his lifetime made with the plaintiff an agreement, whereby he promised to pay and transfer to the plaintiff 300 shares of the capital stock of the Staten Island Water Supply Company, the payment and transfer to be 150 shares upon payment to him by said company of one-half of the stock to be paid to him pursuant to the contract with the company, and the remaining 150 shares when the works are turned over and accepted by said company.

The action concerned only the last instalment of 150 shares. The defense was that the work has never been turned over and accepted by the company. The reply to this is satisfactory. Before the works had been accepted by the company, testator, in his lifetime, before the completion of his contract, assigned it to a third party with the approval of the company, that at the same time released Lockwood, defendant’s testator.

On the face of the contract and from extrinsic circumstances it appears that the acceptance was referred to only as a date or time of payment. The testator was responsible solely, so far as appears, for the acceptance never taking place. He could not by his own act dissolve the obligation of the contract and his executor remain liable upon it.

The plaintiff was present at the meeting of the directors who released Lockwood from the contract. But he did not vote for or promote in any way the assent of the company to Lockwood’s assignment of the contract or his release. Hothihg shows any assent on his part to the course taken by Lockwood.

Defendants’ exception overruled and judgment ordered for plaintiff on verdict, with costs.

Sedgwick, Ch. J., Freedman and McAdam, JJ., concur.  