
    The Atlantic Ave. R. R. Co., App’lt, v. Tom L. Johnson et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    
    1. Lease — Railroads—Performance of covenants by lessor.
    Plaintiff leased to defendants a certain line of railroad to run through certain named streets, and agreed to obtain the necessary consents. It failed to do so as to a material part of the route, and the assignees of the lease, being excluded from such part, offered to surrender to plaintiff on payment of their expenditure. In an action for rent, Beld,_that the agreement to pay rent was dependent on performance by plaintiff, and that it not having fully performed cannot recover.
    2. Same — Evidence.
    Evidence as to such defense was admissible under a general denial.
    Appeal from judgment dismissing the complaint.
    Action to recover rent under a lease of a railroad line. Plaintiff held a lease of a franchise to construct a railroad from Park av.enue and Broadway by various streets, including Central avenue, to Evergreen Cemetery, and leased the same to defendants, agreeing to obtain all necessary consents, and defendants agreed to pay therefor fourteen per cent of gross receipts, or at least $15,000 a year.
    ' The plaintiffs did not obtain the consent of the local authorities for the construction of such road until October, 1886, and never obtained the consent of the commissioner of city works to construct on Central avenue. Immediately after obtaining the consents, the defendants commenced constructing the railroad on Park avenue (where by the contract they were required to commence), and pushed the work of construction with due diligence.
    In February, 1887, they ascertained that another railroad, known as the Broadway Eailroad Company, was claiming the right to construct a railroad on Central avenue under an old grant of the legislature, and had obtained the consent of the commissioner of city works. Thereupon they at once notified Mr. Eichardson (plaintiff’s president), and he requested them to commence building on Central avenue, which they did, but the commissioner of city works interfered and tore up their tracks. An action was brought by one Sealj, an officer of the Broadway Bail-road Company, to restrain the plaintiff and the defendants, as its agents, from laying their tracks; while the plaintiff, claiming that it was entitled to so lay its tracks, brought injunction suits against the city and the Broadway Eailroad Company to prevent interference with it in the laying of its tracks; these suits were all argued and decided as one case, the court deciding that the plaintiff could not construct its road on Central avenue, and vacating its temporary injunction against the Broadway Eailroad Company.
    Upon this decision the defendants notified the plaintiff that they considered the contract broken, and that they were ready to turn over to it such matters as they had.
    
      B. F. Tracy (W. W. IfacFarland, of counsel), for app’lt; Jas. C. Glmrch (8. B. Clarice and Flihu Boot, of counsel), for resp’ts.
   Barnard, P. J.

The scope and meaning of the agreement between the parties was to enable the defendants to have the entire road described in the paper writing. It was known by the contracting parties that certain consents were needed to obtain such a road and the plaintiff agreed to obtain these consents. The defendants began the execution of the agreement, but were finally stopped as to a very material part of the route. The defendants had assigned the lease or privilege before this obstruction became immovable and the assignees notified the plaintiff that they would hold the agreement broken and would surrender all rights received under it on settlement by plaintiff for the expenditure made in the execution of the same before default in obtaining the consent. The agreement to pay fourteeen per cent of the gross receipts, and if this rate fails to amount to $15,000, the defendants were to pay $15,000, at all events, was dependent upon the plaintiff’s full performance of the agreement on its part. The defence to the claim was one provable under a general denial and did not need a counterclaim pleaded to present the question. Dauchey v. Drake, 85 N. Y., 407.

There could be no divisibility in the consideration when the contract was not performed, and there is no obligation to pay for a less consideration than the entire performance of the same by the plaintiff. Grant v. Johnson, 1 Seld., 247.

.The judgment is, therefore, right and should be affirmed, with costs.

Dykman, J., concurs.  