
    Albert W. De Long, Appellant, v. John Zeto and James Di Lucia, Respondents.
    First Department,
    December 3, 1909.
    Sale — agreement that final payment shall be made after completion of building — when vendor entitled to recover.
    Although the contract for the sale of building materials only required the vendee to make the final payment thirty days after he had completed a building under construction, the vendor may recover the balance of the purchase price where more than a 31-ear has elapsed since the acceptance of the material, where the vendee suspended the work and did not complete the building because ' the premises were sold on foreclosure.
    Appeal by the plaintiff, Albert "W. De Long, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 7th day of May, 1909, upon the dismissal of the complaint by direction of the court at the close of' the plaintiff’s case on a trial at the Hew York Trial Term..
    
      
      Mortimer M. Menken [Howard T. Cole with him on the brief], for the appellant.
    
      Sigmund Wechsler, for the respondents.
   Laughlin, J.:

This action was brought to recover the balance alleged to be due on a contract between the parties, by which the plaintiff agreed to furnish and deliver to the defendant's certain building materials, in part specially manufactured and framed, to be used in the construction of four three-story frame houses which the-defendants were erecting on Decatur avenue in the city of Greater Hew York for the Cosmos Realty Company. The agreement between the parties is contained in a letter from the plaintiff, in the name in which he was doing business, to the defendants, under date of September 18, 1907, which was accepted in writing by them. The plaintiff was merely to • furnish and deliver the material, but was not to put any of ft in place in the building. The plaintiff was to receive for the material the sum of $3,300, and the payments were to be made, $1,000 “ when standing trim is up;” $1,000 “ when buildings are completed,” and $1,300, the balance, thirty days thereafter.” The evidence shows that the plaintiff delivered all of the material on the premises on which the buildings were being erected and that it was' accepted by the defendants. The first installment was paid, but the other two installments .have not been paid, and the action is to recover the amount thereof. The last of the.material was delivered in the month of December, 1907. The evidence tends to show that in the month of January thereafter work was suspended on the buildings; that the defendants filed a mechanic’s lien ; that' a mortgage on the premises was foreclosed and that the premises were - sold under the judgment in that action in which the defendants and the Cosmos Realty Company" were made parties defendant. The evidence indicates that the buildings were never completed by the defendants^ but it would seem that that fact might have been more clearly shown. However, this action was not commenced until the 2d day of Uovember, 1908, nearly one year after the plaintiff completed the delivery of the material. If the buildings were then completed, there was no defense to the action ; and if they were not completed, it would seem, as matter of law, on the facts disclosed by this record, that the defendants liad failed to complete the same within a reasonable time, and that the plaintiff was entitled to recover notwithstanding the express provision of hie contract which postponed the payment of these two installments until the completion of the buildings. If the failure of the defend-. ants to complete the buildings was owing to a foreclosure of a mortgage, that is no defense to.this action. The plaintiff was not responsible for the foreclosure action and the consequences of it cannot be visited upon him. The defendants and the Cosmos Realty Company, with which they contracted and which may be liable to them, had it in their power to protect their rights by paying the indebtedness secured by the mortgage and taking an assignment or discharge thereof, as the case might be. The plaintiff was not a party to the foreclosure action nor was he concerned therewith.

It follows that the judgment should be reversed and a new trial granted, with'costs to appellant to abide the event.

Ingraham, McLaughlin, Houghton and Scott, JJ., concurred.

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