
    (26 Misc. Rep. 778.)
    KINCH v. MOADINGER et al.
    (Supreme Court, Appellate Term.
    March 24, 1899.)
    Contract—Construction.
    A contract between two proprietors of livery stables for reciprocal use of their respective teams, as the exigencies of business of each should require, any balance thus arising to be discharged by the debtor furnishing further livery hire equal in value thereto, does not allow one of them, on retiring from business with a balance in his' favor, to recover cash therefor, the other not being in default.
    •Appeal from municipal court, borough of Manhattan, Tenth district.
    Action by Charles A. Kinch against Charles F. Moadinger and another. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Argued before FREEDMAN, P. J., and MacLEAN and LEYEN-TRITT, JJ.
    Isaac P. Goale, for appellant.
    Norman A. Lawton, for respondents.
   LEYENTRITT, J.

An agreement was entered into between the

parties, both proprietors of livery stables, providing for the reciprocal use df their respective horses and carriages as the exigencies •of the business of each should require. Whatever balance of indebtedness- should result from such mutual .accommodation should be discharged by the debtor furnishing further livery hire equal in value to such balance. No payment in money was contemplated. That course of dealing was pursued during four years, the account standing now in favor of the one, now in favor of the other. The •differences were never liquidated. Shortly after the expiration of that period the plaintiff retired from business, claiming a balance in ■his favor, arising from their mutual dealings, in the sum of $122, for the-recovery of which he brought this suit. The defendants dispute the amount, assert that the plaintiff is entitled to satisfaction only by equivalent carriage hire, and plead an assigned counterclaim. Upon the conflicting evidence introduced on these various issues, the justice disallowed the counterclaim, but rendered judgment in favor of the defendants, thus maintaining their version of the agreement.

Since the defendants took no appeal from the disallowance of their counterclaim, there comes before us for disposition only the point, contended for by the appellant, that inasmuch as his retirement from business rendered payment in trade valueless, he became entitled, notwithstanding the provisions of the contract, to demand money. This contention is not sound. , A party is bound by the terms of his contract, and no satisfactory reason' can be urged against the enforcement of the condition under consideration. Where the obligation of a party is to pay in specific articles, or in •specific services, and he is not in default, he cannot be compelled to pay in money. Battle v. Bank, 3 N. Y. 88; Burrall v. Jacot, 1 Barb. 165; Hunt v. Westervelt, 4 E. D. Smith, 225. The plaintiff could recover cash for the excess only upon proof of a breach of the agreement on the part of the defendants in their refusal to furnish carriage hire. Railroad Co. v. Verree, 69 N. Y. 486. There is no proof in the record that the defendants were not at all times willing to perform the terms of the agreement devolving on them. The plaintiff could not, by retiring from business, impose additional obligations on the defendants. That he placed himself in a position where strict performance became unprofitable is his misfortune, and he alone must bear the consequences. The judgment must therefore be affirmed.

Judgment affirmed, with costs to the respondents. All concur.  