
    George Johnson, Bespondent, v. Charles R. Tyng, Appellant.
    
      A party to a contract, himself in default, cannot set up, as a counterclaim, the failure of the other party to continue thereafter to perform it.
    
    Where a contract for services provides that an employer shall pay the employed for the work done by him in each month within sixty days from the date of -each monthly account, but before the time when a payment becomes due the •employer notifies the employee that he cannot pay a note which he had given him for a payment so becoming due, the employer is in default, and is not in :a position to interpose, to an action brought by the employee to recover for work done, a counterclaim based upon the employee’s failure to continue to perform the contract.
    Appeal by the defendant, Charles B. Tyng, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office ■of the clerk of the county of New York on the 10th day of October, 1896, upon, the verdict of a jury rendered by direction of the •court.
    The complaint set up two causes of action : (1) For work, labor,services and ináterials furnished the defendant, and (2) upon an account stated.
    The answer contained a general denial and also set up as a counterclaim “ that the plaintiff, without cause therefor,- or default upon the part of the defendant, unnecessarily and willfully delayed . the execution of said orders (for the manufacture of certain mer■chandise), and afterwards, and from and after the month of July, 1885, or thereabouts, refused and neglected to execute said orders, and failed and refused to keep and perform- said agreement in any particular.”
    
      T. M. Tyng, for the appellant.
    
      J. 0. O' Oonor, for the respondent.
   Ingraham, J.:

The only question presented on this appeal is whether the court below was correct in dismissing the counterclaim set up in the answer. When this case was before this court on a former, appeal, it was held that this counterclaim was properly dismissed, because, even if plaintiff was guilty of a breach, the defendant. proved no damage resulting therefrom, and for the weightier reason that we think the evidence shows that the first breach was committed by the defendant in refusing to make payments in accordance with the terms of the contract.” (1 App. Div. 610.) It having been there decided that, if this defendant first broke his contract by failing to pay money due under the contract to the plaintiff, he could not recover for a.breach of the contract by the plaintiff happening during the .time of such failure to pay, the only question presented to us is whether upon the evidence here it appears that the plaintiff was guilty of a breach of his obligation under the contract before the defendant had failed t'o comply with all of his obligations. The contract provided that “ The party -of the second part (the defendant) agrees to use due diligence in securing orders and to pay to said party of the first part (the plaintiff) for all work done by him, the amount due to him for each month’s work, within sixty (60) days from the date of each monthly a-e.” It was admitted by the defendant that, the plaintiff during the month, of April, 1885, did work for' the defendant under this agreement of the value of $523.36. Under the provisions of this contract, this amount became due within sixty days after the date of each monthly account. It does not appear from the evidence when the monthly account for this work was furnished. It does appear, however, that on May 23, 1885, the defendant gave to the plaintiff a promissory note payable sixty days after date in which it was stated, that such note was for the April account. This note was due July 25, 1885. On July 24, 1885, the defendant wrote the plaintiff a letter asking the plaintiff to get 'his bank to withdraw the note due on the following day, and to hold it over for a few days. In reply to that the plaintiff telegraphed to the defendant, “ Will have note returned if you can send check for three • hundred. Answer.” In reply to that, and on July 25, 1885, the day the note became due, the defendant telegraphed to the plaintiff in answer to the plaintiff’s telegram, “ Could not do on account of another note., Trust you will oblige me as I asked. Please answer.” To that telegram there was no answer. It is -clear that this letter and these two telegrams show a distinct refusal on the part of the defendant to pay the note upon the day it became due, and rendered a presentation, of the note to the defendant unnecessary to put the defendant in fault. The first-letter was a request to hold the note for the defendant for a few days. To that an answer was sent that the plaintiff would do so if the defendant would send $300. The defendant replied that he could not do so — not that he did not want to do so,, but that he could not do so. It is quite clear that this was a positive refusal "to pay the note upon the day it became due, and that upon that day the defendant Was guilty of a breach of his contract to pay within sixty days after the monthly accounts had been furnished. That the defendant entirely understood this is quite evident from his interview with the plaintiff on July 28, 1885. He says that the plaintiff asked him what he was going to do about the payment of the note, and “ 1 told him that I should pay it just as I agreed. •* * * I stated to him that I would pay the money as I agreed. * * * I would pay it just as I told him in my letter I would pay it.” The only time that he had stated in his letter as the time at which he would pay was one-half on the the first of August, and the balance on the eighth of August; but these dates were after the time fixed by the contract at which the sum was to be paid. At no.time after the twenty-fifth of July, when the defendant telegraphed to the plaintiff that he could not pay him even $300 on account of the note, did the defendant ever offer to pay to the plaintiff the amount due upon the note, -and that $523.36 has never been paid. We think it quite clear that the payment of these various sums under the contract, as they should become due, was a condition for the continuance of the work under the contract. The plaintiff was not bound to go on doing the defendant’s work, thus incurring obligations for him, unless the defendant on his part kept his contract with the plaintiff as to payments that were to be made, and on this twenty-fifth day of July the payment of the April account was due. The defendant had given his note in payment thereof. He had expressly stated to the plaintiff that he could not pay it, and we think that the plaintiff was entirely justified in refusing to continue to work for the defendant under the contract, thus incurring further liability, until this note was paid and the defendant had performed his part of the contract. And when, on the twenty-eighth day of July, three days after-wards, and before there had been any refusal on the part of the plaintiff to go on under the contract, plaintiff went to the defendant and asked him to pay the note, and the defendant then refused to pay, making no offer to pay, except the statement that he would pay at the time agreed upon in his letter of July twenty-fourth, which was then sometime in the future, it seems to us quite clear that upon this state of facts the plaintiff was justified in refusing to continue to work under the contract until the defendant had complied with his obligations'and.paid the amount due to the plaintiff.

We think, therefore, that the court below was entirely right in dismissing this counterclaim and that the judgment should be affirmed, with costs.

Yan Brunt, P. J., Williams, Patterson and O’Brien, JJ., concurred.

Judgment affirmed, with costs-.  