
    Edwin M. Cragin, Respondent, v. James O’Connell and Benjamin F. Hillery, Appellants.
    
      Pleading — the omission of a 'material allegation of the complaint supplied by its insertion in the answer •—what contract binds a vendee to purchase stock within a reasonable time, and is not a mere option — tender and retaining possession of the: stock by the vendor.
    
    Where a necessary- allegation omitted from a complaint is supplied by an admission or other allegation in the answer, a motion to dismiss the complaint made at the opening of the trial will be regarded as one made upon the pleadings, and will be denied.
    The rule applied to a case where the complaint, in an action by a vendor against-a vendee to recover the unpaid portion of the purchase price, failed to allege specifically that the vendee promised to pay the purchase price, and the answer set out the contract of sale from which it appeared that the vendee did. make such promise.
    A contract by which the party of the first part agrees to sell a number of shares' of stock to the parties of the second part for a specified sum, with interest, thereon from the date of the purchase to the time of delivery, “said stock to-be delivered in blocks of five shares or more as called for by either of the parties of the second part,” and by which the parties of the second part agree to pay therefor, with interest, from the date of purchase to the time of delivery of the stock, does not confer upon the parties of the second part an option to purchase, which they may exercise or not as they choose, but creates a binding obligation upon them to take and pay for the shares within a reasonable time.
    In the present case a delay of nearly a year after the making of the contract was held to be unreasonable.
    A vendor of personal property after tendering it to the vendee and giving him a reasonable time to accept and pay for it, may retain possession thereof and sue the vendee for the purchase price, upon payment of which the vendee is entitled to the possession of the property.
    Appeal by the defendants, James O’Connell and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of June, 1899, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term.
    The action was brought to recover for the breach of a contract for the sale of certain shares of stock. ■
    The contract, which is set out in the defendant’s answer, provided as follows:
    “ That the said Edwin M. Cragin, party of the first part, agrees to sell to James O’Connell and Benjamin F. Hillery forty-five (45) shares of the capital stock of the O’Connell & Hillery Lime and Marble Dust Company, of the par value of one hundred dollars ($100) per share, together with any dividends now accrued or hereafter to accrue thereon for the price or sum of four thousand five hundred dollars ($4,500) and interest at the rate of six per cent (6$) per annum from the date of his purchase of said mentioned stock to the date of transfer and delivery of said stock, said stock to be delivered in Mocks of five shares or more, as called for by either of the parties of the second part, together with all assignments, transfers and conveyances necessary to assure the said parties of the second part, to them, their heirs and assigns, the full right and enjoyment of same forever.
    “In consideration whereof James O’Connell and Benjamin F. Hillery, parties of the second part, agree to pay to the said Edwin Ml. Cragin, party of the first part, the full price or sum of four thousand five hundred dollars ($4,500) and interest thereon at the rate of six per cent (6$) per annum from the date of his purchase of said stock to the time of the taking or delivery of said mentioned stock, on receipt of assignment, and the stock so assigned shall be properly executed and delivered to Janies O’Connell or Benjamin E. Hillery, or either of them.”
    
      Michael J. Scanlan, for the appellants.
    
      William V. Rowe, for the respondent.
   Patterson, J. :

The plaintiff sued to recover for the breach of a contract for the sale of forty-five shares of the capital stock of the O’Connell & Hillery Lime and Marble Dust Company. In the complaint, he sets forth the malting of the contract (which was in writing) and states that he “ agreed to sell to the defendants forty-five shares of the capital stock of The O’Connell and Hillery Lime and Marble Dust Company, of the par value of §100 per share, together with any dividends accrued or to accrue thereon, for the sum of §4,500 and interest on said sum at the rate of six per cent per annum from the dates on which the plaintiff herein purchased said stock to the date of the delivery of said stock to the defendants herein; such agreement to be performed within a reasonable time.” The complaint then proceeds to set forth that no dividends were ever paid on the stock; that the plaintiff has at all times since the making of the contract been able, willing and ready to deliver the shares pursuant to the contract and at divers times has tendered them to the defendants and has frequently made demand upon them to perform their obligations as in said contract agreed and provided, and although a reasonable time for the performance of the contract has long since elapsed, the defendants have wholly neglected and refused, and still neglect and refuse, to receive the shares and pay for them, except that §150 was paid in June, 1897, on account of the agreed price. Judgment was demanded for the balance of the purchase price, with interest.

There is no specific statement in the complaint that the defendants promised to pay for the shares, and at the opening of the trial the defendants moved to dismiss the complaint on the ground that there was no sufficient allegation to charge the defendants with liability upon a promise. It appeal’s by the complaint that the contract was entered into on the 1st of August, 1896. There are some allegations in the complaint from which a promise of the defendants anight be possibly implied, but however that may he, the defend•ants in their answer set out in full a contract made between the plaintiff and themselves on the 1st of August, 1896, relating to the purchase and sale of the shares of stock referred to in the' complaint, and they say that it was the only contract or agreement made between the plaintiff in this action and themselves in relation ;to the shares of stock mentioned in the complaint. The court -declined to dismiss the complaint for insufficiency, and its ruling in 'that regard is the first ground of error assigned on this appeal.

It may be doubtful whether this complaint would have stood the test of a demurrer, and while a motion to dismiss a complaint for insufficiency is equivalent to a demurrer, yet the recent decisions of courts of authority in this State are to the effect that where insufficiencies of the allegations of a complaint are supplied by an admission or other allegations of the answer, the motion to dismiss, made at the commencement of a trial, is to be regarded as one made upon the pleadings. Thus, in Cohu v. Husson (113 N. Y. 662), a motion was made to dismiss the complaint at the opening of the case on the ground that, upon its face, it appeared that suffi•eient facts to constitute a cause of action were not set forth. 'That motion was denied and the Court of Appeals said that where 'the complaint was not in compliance with the Code of Civil Pro•cedure, the defect in it was cured by an answer, in which the facts not appearing in the complaint were admitted, and that, therefore, •even if the complaint would have been defective if demurred to, ".that defect was cured by the answer, and the complaint may (on appeal) be deemed amended. The same view was taken in Jacquelin v. Morning Journal Assn. (39 App. Div. 519) in which the cases relating to the subject are cited. We think the court was .right in refusing to dismiss the complaint on that ground. The •contract is set out in a separate and independent defense in which is placed before the court the identical instrument upon which the .plaintiff sues.

It is urged further that a motion to dismiss the complaint at the -close of the plaintiff’s case should have been granted for the reason '“that the contract sued on and the contract ¡out in evidence was not •a contract for sale, but gave an option to the defendants which they might exercise or not as they chose. They were not obliged to call for the stock, and the contract may be deemed abandoned by them.” That is not the true construction of the contract. It is very plain that the parties contemplated an out and out sale and purchase of the forty-five shares of stock, the subject of their dealing. Everything required to constitute a binding contract is present in the written agreement. Indefiniteness as to time of performance is the only feature in it which distinguishes it from an ordinary contract of purchase and sale. The plaintiff was bound to deliver at such times as the defendants, or either of them, might choose to make demand for five shares or more, but the defendants were to pay interest upon the whole purchase price until they performed the contract and §150 was paid on the contract. There was a binding obligation on the defendants’ part to take and pay for the shares, and their correspondence in evidence shows their understanding of their obligations. It may be argued that, with reference to time of performance, the defendants had an option, and, hence, the plaintiff could not maintain an action on the contract until the defendants exercised their option, which would leave the case in this situation, viz., a contract obligatory upon the defendants to take the stock and pay for it, but one which, by reason of their option, could run on indefinitely as to time. We think the rule applicable in such a case is that “ there being no fixed time within which the stock was to be taken, the law implies that it should be done in a reasonable time. To hold otherwise would make the contract unilateral — binding the seller, but not the purchaser, as he might never exercise his option.” (Sanborn v. Benedict, 78 Ill. 309, 316.)

We think this contract was one which was to have been performed within a reasonable time, inasmuch as the defendants were absolutely bound to purchase and pay for the shares at some time. Nearly a year passed from the making of the contract to the institution of this action. The defendants had in their letters to the plaintiff given excuses from time to time for non-performance, and made promises relating to performance. The plaintiff made his absolute demands after the allowance of many months. There is no dispute as to the facts, and under the circumstances, whether the question of reasonable time is one of law or of fact, it was to be passed upon by the court, the case being tried without a jury.

The plaintiff was allowed to recover the contract price, he retaining the shares for and as the property of the purchasers. In Westfall v. Peacock (63 Barb. 209) it was held that a seller of personal property, upon tendering the property and giving the buyer reasonable time to accept and pay for it, may retain possession of it as security and sue the purchaser for the contract price, and that “ when such payment is enforced and complete, the vendee is entitled to the possession of the property.” That rule applies here. Mo other question dis'cussed requires consideration.

The judgment should be affirmed, with costs.

Van Brunt, P. J., Rumsey, O’Brien and McLaughlin, JJ., concurred.

Judgment affirmed, with costs.  