
    William F. Dreyer, Respondent, v. McCormack Real Estate Company, Appellant.
    Second Department,
    October 2, 1914.
    Contract — building contract — suspension of work by mutual consent — failure to prove default of defendant — former recovery.
    Where work on a building contract is suspended by the mutual consent of the contractor and the owner, and there is no subsequent offer by the contractor to perform or refusal by the owner to permit performance, an action to recover profits is premature, as the owner is not in default.
    
      
      It seems, that a discontinuance of a former action brought by the contractor to recover for work already done, and the payment of the amount due by the owner, would not bar a subsequent action by the contractor to recover profits, if the owner were guilty of a breach of .contract.
    Appeal by the defendant, McCormack Real Estate Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 18th day of February, 1914, upon the verdict of a jury, and also from an order entered in said' clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.
    
      Benjamin Reass [Hugo Hirsh and Emanuel Newman with him on the brief], for the appellant.
    
      James M. Gray, for the respondent.
   Thomas, J.:

The work was suspended by mutual consent in July, 1908, and this action was begun without any attempt by word or act on the part of the plaintiff to perform, or any refusal to permit its progress on the part of the defendant. The plaintiff’s theory is that defendant came into actionable fault by lapse of time. The cessation of the work was concerted by the parties and a cause of action against defendant did not accrue from the continuance of the status initiated by both parties. The defendant, from a state of permitted repose, could not without some act on its part or that of plaintiff come into delinquency. What does the plaintiff mean by defendant resuming ? The plaintiff, not the defendant, was the actor. The plaintiff could work, or offer to work. The defendant could only meet such action by assent or dissent. Although the parties remained friendly and were in association, nothing was even suggested by plaintiff. Hence the action is premature. But in April, 1910, the plaintiff sued in the Municipal Court for work already done, and after issue joined it was stipulated that the action should be discontinued upon certain payments made by defendant, or in default thereof judgment entered. The payments were made and the action discontinned. In August, 1910, this action was brought to recover the profits of the contract, and although the former action and payment pursuant to stipulation were pleaded and proved, recovery was had. If at the time the action in the Municipal Court was begun the cause of action for the profits had accrued, then this action is barred by the proceedings in the former action. (O’Beirne v. Lloyd, 43 N. Y. 248.) But at that time recovery of the profits could not be had, as the work on the contract was in abeyance by agreement of the parties, and no breach as to the work undone existed. Hence plaintiff then sued only for a balance of the price of work done, which was due him according to the terms of the contract, at least to. the extent of seventy-five per cent thereof. As to the future profits the defendant was not in default. As to work done he was in default. Hence the settlement did not and could not affect an action for profits. But if the defendant was not in default as to profits in April when the former action was begun, he was not in default as to such profits when this action was begun, as neither party had done any act that affected the situation. The plaintiff could not sue for profits in April or in July, because at neither period did a cause of action exist for them. If he urges that the present cause of action existed in July, then he is met by the demand that it existed in April and should have been included in the former action. In my judgment the profits were not recoverable in April. Hence the settlement of the former action is not a bar to this action. But this action is not maintainable, as defendant was not put in default as to the profits before this action was begun.

The judgment and order should be reversed and the complaint dismissed, with costs.

Burr, Carr, Rioh and Stapleton, JJ., concurred.

Judgment and order reversed and complaint dismissed, with costs.  