
    Mary E. Schoen, Respondent, v. Albert Wagner, Appellant.
    
      Contract — times of payments to be made thereunder.
    
    In an action brought to recover §6,000, a balance alleged to be due under a written agreement, the defendant admitted the agreement, but denied that there was anything due. It appeared that by the agreement the defendant agreed to-pay the plaintiff §12,000 for her interest in two buildings, in process of erection in different places by a railroad company, “the first payment of §6,000 to be-paid during the first part of the building now contemplated, and the remaining §6,000 to be paid during the completing of said building as per plans filed in the building department, as now contemplated” by the railroad company, and that, if any plans were changed, then the plaintiff’s claim was to he paid ‘ ‘ in the same ratio as the amount mentioned.” Four several dates of payment of installments oí tho first payment were then stated, and then followed the words: “ The second payment to he arranged hereafter to suit the convenience of the contracting parties.”
    The plans produced upon the trial showed that the railroad company contemplated, at the time of the contract, the completion of only a part of the building, and that when the action was brought only the first part of the building had been constructed.
    
      Held, that the meaning of the agreement was clear, and that as the first payment had been made no action would as yet lie for the recovery of the second payment.
    Appeal by the defendant, Albert Wagner, from a judgment of the Superior Court of the city of New York, entered in the office of the clerk of said corn't on the 17th day of May, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of May, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    
      Samuel Untermyer and Moses Weinman, for the appellant.
    
      O. G. Leeds, for the respondent.
   Van Brunt, P. J.:

This action was brought to recover §6,000, a balance due upon a written agreement. The defendant admitted the agreement, but denied that there was anything due thereunder. Upon the trial the agreement was offered in evidence, and the court held that it was ambiguous and needed explanation. Evidence was offered on both sides and the case submitted to the jury, who found a verdict for the plaintiff, and from the judgment thereupon entered and from the order denying a motion for a new trial this appeal is taken.

The agreement upon which the action was brought is as follows:

July 7, 1892, New York.
This agreement between Albert Wagner and Mary E. Schoen that said Wagner is to pay Mary E. Schoen (12,000) twelve thousand dollars, for her claim in the two buildings now being erected by the 3rd Ave. R. R. Co., Bowery, Bayard St., and also 65th St. and 3rd Ave. The first payment of (6,000) six thousand, to be paid during the first part of the building now contemplated, and the remaining 6,000 to be paid during the completing of said building as per plans filed in the building department as now contemplated by the 3rd Ave. R. R. Go., if any plans are changed then my claim shall be paid in the same ratio as the amount mentioned.
“ Referring to the first payments, payments are to be made as follows:
“ $1,000 during the month of July, 1892.
“ $2,000 during the month of September, 1892.
“ $2,000 during the month of November, and
“ $1,000 during the month of January, 1893.
“ The second payment to be arranged hereafter to suit the convenience of the contracting parties.
“ALBERT WAGNER,
“MARY E. SCHOEN.”

This instrument seems to us to be reasonably clear in its terms and to require no explanation as to what the parties meant by their contract, when the agreement is supplemented by the plans, which, at the time the same was entered into, were on file in the building department, and are referred to in the agreement. Upon an examination of those plans as offered ujion the trial, it appears clearly what the parties intended, viz., that the defendant should pay to the plaintiff $6,000 during the progress of the work upon the first part of the building, the intention irpon the part of the railroad company, the builder, being only partially to complete the building then, and at some subsequent time to erect the remainder of the building as shown upon the plans on file in the building department. The second payment of $6,000 was to be made during the completion of the building as by the plans filed. The dates of the first payment were fixed by the contract, and the dates of the second payment were to be arranged thereafter to suit the convenience of the contracting parties.

At the time of the commencement of this action the first part of the building only had been completed, and the payments called for during the erection of the first part of the building had been made. There was nothing due to the plaintiff in respect to the second half of the building, because that work had not been begun. The building, according to the plans, was to be a nine-story building, at the corner of Bowery and Bayard street, and a new building between Sixty-fifth and Sixty-sixth streets, extending from Second to Third avenues. At the time of entering into this agreement it was contemplated to erect part of the Sixty-fifth street building, and the basement and first story of the building at the corner of Bowery and Bayard street. And it was this condition of contemplation that led to the separation of the items of the agreement, the first $6,000 to he paid upon the first part contemplated to he built, and the second $6,000 during the doing of the work of the second part, which it was evidently understood between the parties would he deferred for some time, so that they could not fix the dates for the payment, as they had done in respect to the first portion of the work.

There was evidently no question to go to the jury, because there was no disputed question of fact, and the agreement between the parties, with the plans, made out an intelligible contract, a breach of which the plaintiff has failed to show.

The judgment and order appealed from should he reversed, and a new trial ordered, with costs to the appellant to abide the event.

Barrett, Rumsey, Williams and Ixgraham, JJ., concurred.

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