Atlantic Avenue Railroad v. Johnson

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 piper writing. It was known by the contracting parties that certain cons'n is were needed to obtain such a road, and the plaintiff agreed to obtain hese consents. The defendants began the execution of the agreement, but wbe nni.lly stopped as to a very material part of the .route. The defendants hid assigned the lease or privilege before the obstruction became immovable, md tne assignees notified the plaintiff that they would hold the agreement br ken, 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 14 per cent, of the gross receipts, and, if this- rate fails to amount to $16,000, 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 defense to the claim was one provable under a general denial, and did not need a counter-claim 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, 5 N. Y. 247. The judgment is therefore right, and should be affirmed, with costs.