
    CHARLES H. SMITH, Respondent, v. GEORGE S. WRIGHT, Appellant, and others.
    Appeal from a judgment in favor of .plaintiff, entered upon the report of a referee.
    This action was brought to recover a balance due upon a written contract to do joiner and other work on the steamship Vixen. By the terms of the contract and specifications, all the materials and workmanship were subject to the approval of the defendant Lewis. The payments were to be made on the order of Lewis. The plaintiff neither gave evidence of an order from the defendant Lewis, nor John T. Wright, Jr., the agent of the defendants, the owners, and who made the contract as such, nor of an application for it, as required by the contract to enable him to demand payment. Held, that it was necessary to show, in the absence of the order, that it was obstinately and unreasonably or fraudulently refused on application. Performance of the contract when the order is refused will excuse its non-production, because that proof will demonstrate the unreasonable conduct of the person in refusing to give it, but it will not obviate the necessity of applying for it. (Smith v. Brady, 17 N. Y., 176; U. S. v. Robeson, 9 Peters, 319 ; McMahon v. N. Y. and E. R. Co., 20 N. Y., 466 ; Thomas v. Fleury, 26 id., 26 ; see, also, Hurst v. Litchfield, 39 id., 380; Wyckoff v. Meyers, 44 id., 143; Glacius v. Black, 50 id., 145.)
    
      Albert Smith, for the respondent.
    
      John N. Whiting and Foster & Thomson, for the appellant.
   Opinion by

Brady, J.

Davis, P. J., and Daniels, J., concurred.

Judgment reversed and a new trial ordered, with costs to abide event.  