
    SUPREME COURT.
    Israel G. Whitney agt. John B. Page.
    
      Stock—Assessments paidby seller on stock sold to be delivered at future time — Bight of seller to repayment of such assessments.
    
    Where shares of stock are sold to be delivered at a future time, and before the delivery the seller, to save it from forfeiture, pays assessments levied upon the stock, he has the right to refuse delivery until repayment of such assessments.
    
      Special Term, March, 1885.
    On the 30th of June, 1881, the defendant, John B. Page, entered into certain contracts with one E. R. Wiggin, in the words following:
    “Value received, I hereby agree to pay and deliver to E. R. Wiggin, or his order, on demand,, fifty shares of the capital stock of the North River Construction Company, said stock having twenty per cent of its par value paid in thereon — that is, twenty dollars per share,
    “ New York, June 30, 1881.
    “JOHN B. PAGE.”
    and
    “ For value received, I hereby agree to pay and deliver to E. R. Wiggin, esq., or his order, fifty shares of the capital stock of the North River Construction Company, said stock having twenty per cent or twenty dollars per share of its par value paid in thereon, said stock to be delivered when said Wiggin surrenders to me certificate for two hundred and thirty-four shares or thereabouts (being the only certificate outstanding in said Wiggin’s name) in the Continental Railway and Trust Company, which stock last named has been assigned and sold to me.
    “New York, June 30, 1881.
    “JOHN B. PAGE.”
    
      Subsequently the said Wiggin assigned the said contracts to the plaintiff, of which the defendant had no notice until November 11, 1882. Prior to November 11, 1882, there had been additional calls upon said construction company stock, which the defendant paid, as the stock would have been forfeited had such calls not been paid. Upon the 11th of November, 1882, the defendant received of the plaintiff the certificate referred to in the second of the above mentioned contracts for 234 shares of the Continental Railway and Trust Company, and the plaintiff demanded his construction company stock, which the defendant refused to deliver unless the assessments which he had paid were refunded. This the plaintiff refused to do, and in May, 1883, brought this action for specific performance.
    
      Edwin B. Smith, for plaintiff.
    
      A. B. Page, for defendant.
   Tan Brujstt, J.

— The main question involved in this case seems to be whether the defendant was justified in the payment of the assessments levied upon the stock, and whether he had a right to demand their repayment before delivering the stock to the plaintiff. If, in the case of Duffy agt. Donovan (52 N. Y., 634), the law is truly stated (and it is not for me to question it), in equity the defendant held this stock in trust for the plaintiff, and as he was bound to protect the title he had no option but to pay, as non-payment would have forfeited the stock. In the case of Duffy agt. Donovan the payment of taxes, assessments and interest was allowed by a party who was in default in not delivering possession of property. How much more equitable is it to allow such payments made by a party who is not in default ? Such being the case the defendant had the right to demand repayment of assessments paid by him, and if such repayment was refused he was justified in his refusal to deliver.

The complaint must therefore be dismissed, with costs.  