
    Jeremiah Sullivan et al., Resp’ts, v. The New York and Rosendale Cement Company, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May, 1888.)
    
    1. Parties to action—Defect in parties plaintiff apparent in complaint—Objection to must be by demurrer.
    • _ Where it appears in the complaint that there is a defect of parties plaintiff objection, if taken, must be by demurrer.
    2. Same—When complaint is demurrable.
    There need be no allegation in the complaint that the omitted plaintiff is living at the time of the action to make the complaint demurrable.
    3. Contract—Breach of—Recovery of damages for.
    This action was brought to recover damages on the ground that the defendant prevented plaintiffs from fully performing a written contract between the parties for excavacating a tunnel for the defendant. The several plaintiffs stopped work at different times, and shortly subsequent thereto work was suspended, the suspension being, as the plaintiffs claim, with their consent, for the period of two weeks, but according to the defendant until the general resumption of work. Some time after the expiration of that period formal notice was sent by the plaintiffs to the defendant asking whether they should further prosecute the work. Subsequent to this the defendant by letter demanded that they should go to work, to which they assented on condition that they were paid for the stoppage of the work. Held, that if the plaintiffs were given opportunity to proceed with the work within a reasonable time after its resumption and before they had reasonably engaged in other work they could not recover.
    4. Same—What is not breach of.
    
      Held, that it was the plaintiffs’ duty when prevented from performing the contract to engage in other work, and that having done so after waiting a reasonable time, they were not bound to go back to work under the contract.
    5. Trial of action—Charge to jury—Trial judge need not repeat WHAT HAS BEEN SUBSTANTIALLY CHARGED.
    
      Held, that a trial judge having properly charged the law is not required upon request to repeat substantially the same thing in different language.
    Appeal from a judgment entered upon a verdict of a jury and from an order denying a motion for a new trial.
    
      Schoonmaker & Linson, for app’lt; D. M. De Witt., for resp’ts.
   Learned, P. J.

If it were a new question, I should think that a defect of parties plaintiff might in all cases be set up by demurrer or answer. Either form of pleading sufficiently apprises the plaintiff of the defect, and an answer is less dilatory. But it seems to be settled that, if such defect appear in the complaint, the objection must be taken by demurrer. Zabriskie v. Smith, 13 N. Y., 322, and other cases.

The question then comes up, does the defect appear in the complaint, where there is not a distinct averment that the omitted party is living at the commencement of the action. On the whole, considering the case above cited, and Eaton v. Balcom (33 How. Pr., 80) and Sanders v, Yonkers (63 N. Y., 489), we conclude that an allegation in the complaint that the omitted plaintiff was living at the time of the action is not needed to make the complaint demurrable. Therefore this defendant could have demurred, and cannot set up the defect by answer. We come to this result reluctantly, and follow authorities.

The action is for damages, on the ground that defendant prevented plaintiffs from fully performing a written contract between the parties for the excavating a tunnel for defendant. Sullivan, Foley, Enright and Bradley were the original parties. Buchley signed subsequently; Bradley quit working October 1; Enright November 25.

About December 17, work was suspended. The plaintiffs claim that by their consent the work was suspended two weeks. That after that time they were ready and offered to go on, but were prevented by defendant. On the 11th of February a formal notice was sent by plaintiffs, Sullivan, Foley and Buchley to defendant that they were ready and desired to know whether they were to run the tunnel further.

On the 27th of February defendant demanded by letter that they should go to work. To this they replied March 2d, that they would go to work if they were paid damages for the stoppage of the work.

Foley had obtained employment with another company February 15th; Buchley the 8th; Sullivan went to work by the day for defendant, the 15th. The court submitted to the jury the question what the agreement was as to the suspension of work; and whether the defendant did prevent the plaintiffs from going on and completing the contract at a time when they had a right to proceed with it. No objection seems to have been taken to this.

As to the measure of damages stated in the charge no exception was taken. Several requests by defendant were complied with in the charge.

The defendant asked the court to charge that if plaintiffs were given an opportunity to proceed with the work within a reasonable time after the resumption of work (that is general work in the quarry) the plaintiffs cannot recover. The court charged this with the qualification within a reasonable time and before plaintiffs had reasonably engaged in other work. The qualification seems unobjectionable. If the plaintiffs had reasonably engaged in other work, that implied that they had waited for the resumption a reasonable time and had then found work elsewhere. The court had pointed out to the jury that there were two versions as to the suspension: the plaintiffs’ that it was for two weeks, the defendant’s that it was till general resumption of work. And the court had said almost in the language of the request that if the defendants tendered the plaintiffs an opportunity to go on with the contract within a reasonable time after the expiration of the period of suspension it was the duty of plaintiffs to do so, and failing to do so they could not recover.

Furthermore on looking at the charge we find that the court had said that if on resumption of general work the defendant gave plaintiffs an opportunity of resuming then plaintiffs could not recover. So that the only point was whether such opportunity was sufficient if within a reasonable time. In considering this it was right to have in view whether plaintiffs had reasonably engaged in other work. If they had done so, then the opportunity offered by plaintiffs would not have been within a reasonable time.

There was nothing in the written contract allowing any suspension. Whatever suspension lawfully existed, must have been by subsequent agreement of parties. When that ceased, the plaintiffs had a right to go on at once, and the defendant was bound to continue under the contract “to furnish all necessary materials.”

The defendant asked the court to charge that the plaintiffs would have had a right to go to work upon the tunnel when notified to do so, and hold defendant for damages caused by delay. The court refused. Perhaps the request meant that the plaintiffs were bound to go to work when thus notified. For whether they had a right to do so or not, was not in question. But we must take this refusal in connection with the previous charge, since it is well settled that when a judge has properly charged the law, he is not required to repeat the same thing in substance, in order to comply with a request which may contain different language. The judge has previously charged that if the defendant’s version was right, and they gave the plaintiffs the opportunity of resuming, when general work was resumed, and the plaintiffs refused, then plaintiffs could not recover.

If the suspension was only for two weeks, then it could not be claimed that at the end of that time the defendants permitted plaintiffs to go to work.

That it was the duty of plaintiffs not to be idle, but to éngage in other work, when prevented from performing this contract, is quite true. When they had engaged in other work, then we cannot say that they were bound to go back to this contract, though requested, if they had waited a reasonable time.

There seems to have been no claim by defendants that the damage was mitigated by any amount earned by plaintiffs in other work; so that the question whether that rule of mitigation would apply here does not arise,

The plaintiffs could not go on with the work against defendant’s wishes, as sufficiently appears by the contract and the proof. We discover no error in the trial.

Judgment affirmed with costs.

Landon and Ingalls, JJ., concur.  