
    Central Gas, etc., Co. v. Kohn.
    (City Court of New York—General Term,
    November, 1892.)
    Plaintiff agreed with one C., for a stipulated price, to furnish and hang-certain gas fixtures in a house by a fixed day. Thereafter, for a valuable consideration, defendant guaranteed with plaintiff, in writing, the-payment thereof on a day certain. In an action on the guaranty, held, that the failure of 0. to have the building in condition to hang the fixtures on the day named, and the fact that they were only partially up. at that time, did not relieve defendant of his obligation to pay therefor; that plaintiff was entitled to recover, even though the contract with C. was only substantially performed.
    
      Held, also, that plaintiff was not required to actually pay to defendant the consideration price mentioned in the guaranty before he received the principal sum. A tender thereof required defendant to perform his part of the contract, and his failure to do so justified the suit in question.
    Appeal from judgment entered on a verdict in favor of plaintiff.
    
      William, J. Lippman, for defendant (appellant).
    
      Birdseye, Cloyd & Bayliss, for plaintiff (respondent).
   Fitzsimons, J.

The plaintiff agreed with one Carey on April 15, 1891, to furnish and hang certain gas fixtures in house at One Hundred and Fourth street and Eighth avenue for the sum of $1,350, to be completed May 1, 1891: On April 16, 1891, the following agreement was made by defendant with plaintiff:

“ In consideration of the sum of one dollar to me in hand paid by the within named Central Gas and Electric Fixture Company, the receipt of which is admitted, and of the sum of one hundred and ten dollars to be paid to me, and of other good and sufficient considerations, me hereunto moving, I hereby guarantee the payment of the within named sum of $1,350 by the said Carey to the said company for said fixtures when hung, as therein stated, and promise and agree to pay the same to the said company on the fifteenth day of May, 1891, unless the said Carey shall, on or before said date, pay the same to the said company in full.”

The failure of Carey to have the buildings mentioned in a condition so as to permit plaintiff to hang the fixtures on or before May first, and the fact that such fixtures were only partially put up at that time, and that subsequently nearly all-the remainder were placed in position, does not free defendant from his obligation' to pay therefor; that was the fault of Carey, not the fault of plaintiff. Plaintiff is entitled to a recovery against defendant, even though the contract made with Carey was only substantially performed. The plaintiff was not required to actually pay the $110 mentioned in the guarantee to defendant before he received the $1,350, provided for in such guarantee. The performance of these several acts were independent of each other, and it was only necessary for plaintiff to tender said $110 at most; the defendant was then required to perform his part of the contract., His failure to do so, entitled plaintiff to institute against him this cause of action.

We find no error.

Judgment affirmed, with costs.

Ehrlich, Ch. J., concurs.

Newburger, J. (dissenting).

This is an appeal from a judgment entered upon a verdict in favor of the plaintiff. The plaintiff in writing offered to place gas fixtures in certain apartment houses in this city, which offer was accepted by the then owner, one John J. Carey. Subsequently the defendant executed a guarantee as follows:

In consideration of the sum of one dollar to me in hand paid by the within named Central Gas and Electric Fixture Company, the receipt of which is admitted, and of the sum of $110 to be paid to me, and of other good and sufficient considerations me hereunto moving, I hereby guarantee the payment of the within sum of $1,350 by the said Carey to the said company for the said fixtures when hung as therein stated, and promise and agree to pay the same to the said company on the 15th day of May, 1891, unless the said Carey shall on or before the said day pay the sum to the said company in full.”

On the trial of this action, at the close of plaintiff’s case, defendant moved to dismiss the complaint oh the ground, among others, of the invalidity of the tender made by the witness Coles on behalf of the defendant, which motion was denied and exception taken. It appears that the guarantee was signed and delivered on or about the 16th day of April, 1891, and that the sum of one hundred and ten dollars ($110), agreed to be paid by plaintiffs to the defendant, was not then paid. On October 13, 1891, more than six months thereafter, Coles offered the defendant $110 in greenbacks and asked the defendant to carry out his contract. He did not leave the $110 with the defendant, although said defendant was willing to accept the sum. The complaint should, therefore, have been dismissed.

Before the plaintiff can recover it is necessary for them to show that the consideration referred to in the guarantee was fully paid, and as it appears uncontradicted that the amount of the consideration referred to in the guarantee was not paid, the trial justice erred in denying defendant’s motion.

For these reasons the judgment must be reversed, a new trial ordered, with costs to abide the event.

Judgment affirmed.  