
    Henry Gates, App’lt, v. Levi G. Hendrick, Resp't.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1889.)
    
    'Contract — Action for breach, when premature.
    By a -written, contract it was provided that defendant should sell certain land to plaintiff, who agreed to lease it to defendant, together with so much of his own land as was cleared or as defendant should clear, for four years, and defendant agreed to clear five acres. Feld, that defendant had the whole four years in which to clear said land, and that an action to reuover for his non-performance brought before the end of the term was premature.
    Appeal from a judgment entered in Wayne county on the report of a referee dismissing the complaint.
    
      Jacob B. Decker, for app’lt; Brink & Joiner, for resp't.
   Macomber, J.

This action was brought to recover for the nonperformance of a written contract to clear five acres of land, and the loss of the use of such land.

The answer sets up the defense that the action was prematurely brought It was begun on the 25th day of January, 1887. The contract was dated the 14th day of August, 1882, and provided that the defendant should sell a part of the south fifty acres_ of land on which he then resided, lying north of the highway, being about four acres of land, for which the plaintiff was to pay him $100 per acre. After certain other provisions not necessary to mention in detail, the contract provides : “ Gates further agrees to lease the said land bought of Hendrick together with that he now owns, - which is cleared, or Hendrick may clear lying to the north of the same, being part of twenty-five acres, for four years from April 1, next, at forty dollars per annum, payable annually. Hendrick is to pay also all taxes assessed against said land. Said Hendrick also agrees to clear five acres adjoining the land now cleared. * * * Payment of rent tobe made on November 1st in each year.”

By the fair construction of this instrument the defendant had four years from the 1st day of April, 1883, namely, until the 1st ■day of April, 1887, in which to perform his part of the agreement, for the supposed omission to do which this action is brought. The defendant had paid the rent reserved and had performed all of the obligations on his part save that he had not completed the clearing of the five acres in question on the 25th day of January, 1887, when this action was begun. Under these circumstances no right of action accrued to the plaintiff for the failure to clear the wood land until after the expiration of the time contracted for; hence, it follows that the action was prematurely brought, and the complaint was properly dismissed by the learned referee.

The judgment should, therefore, be affirmed.

Barker, P. J., and Dwight, J., concur.  