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in the corporation to be formed under the reorganization scheme. These privileges were to be acquired by the payment of certain assessments, and might be withheld entirely by the bondholders' committee. By this agreement it was further provided that, should any holder of stock decline or fail to pay his assessments, the priv ilege of receiving such stock in the reorganized company should be ratably distributed among the holders of debt certificates and of stock who shall have paid their assessments; and, in case such persons did not accept the privilege, the same should be allotted by the committee, in their discretion, to other persons who might be willing to accept the privilege and make the required payments. And the agreement further provided that the holders of stock whose address was lodged with the committee, or noted upon the stock ledger of the company, should be deemed to have declined the offer of such privilege after 20 days' notice, mailed to such persons at such address. After the committee had called for the assessments upon the stock represented by the plaintiff, after the time had elapsed, and after the rights of other parties had intervened by reason of the terms of the agreement, the plaintiff seeks to compel the delivery of this stock. It seems to us there is no question but that the holders of debt certificates and of stock who had paid their assessments became entitled as matter of right to claim this stock upon payment of the assessment, where the holder of the original stock had failed to do so pursuant to the terms of the reorganization agreement. It required no proceedings upon the part of the reorganization committee to terminate the rights of a defaulter under this agreement. The conditions of the agreement executed themselves. The moment the old stockholders made default, the rights of others intervened, which they could enforce, and which the committee could not ignore. But it is said that, as late as, and even after, the plaintiff tendered the assessment upon the stock which he represented, the committee received payments from other persons. Upon an inspection of the record it would appear that, although the payments were actually received at that time, notes had been given at a prior time, and accepted by the committee, for assessments which were not paid until about the time of the plaintiff's tender. Whether the committee had the right to accept these notes or not is not a question which it is necessary for us to determine. That is a question between them and those whom they represent, with which the plaintiff has nothing to do. Because the committee may have failed in their duty in one instance does not give the court power to compel them to violate their duty in another.

It has already been said that this action was for specific performance, and this designation of the action was made advisedly, because that seems to have been the actual scope of the action,to compel the committee to deliver this stock which had been agreed to be delivered upon the payment of the assessments under the agreement. Now, the one principle which underlies the enforcement of all contracts is that the plaintiff shall prove that he

has performed all the conditions of the contract upon his part, and if he fails to do that he cannot maintain an action for specific performance. It is a familiar principle that a party seeking to enforce a contract must allege and prove that he has performed its conditions upon his part, unless the other contracting party, having the power so to do, has waived these conditions. It does not require any action upon the part of the other contracting party to preclude a recovery upon a contract where the party seeking to recover is in default. The mere fact of the existence of the default precludes such recovery. The reorganization committee are not insisting upon a forfeiture. They are asking nothing. But the plaintiff seeks to be relieved from a default, and to have the same rights as though he had performed his contract. We are not aware of any branch of equity jurisprudence which authorizes the court to insist that one party shall perform the contract, and to relieve the other party from its obligations. The opportunity to enter into this new organization after foreclosure of the mortgages and the purchase of the property by the reorganization committee was a privilege extended to the stockholders. As already intimated, their rights in the property which their stock was supposed to represent had been cut off by the foreclosure. They were entitled to nothing, and this option or privilege was offered to them, and they had a right to accept or reject it, as they saw fit. The holders of the plaintiff's stock having accepted, but failed to comply with his contract of acceptance by making the payments which were conditions precedent to his right to receive the stock sought to be recovered in this action, it is difficult to see upon what basis the plaintiff could possibly succeed. All argument is a mere restatement of the proposition that a party seeking to enforce a contract must prove that he has complied with the conditions therein contained to be performed by him; and this the plaintiff certainly has not done. We think, therefore, that the judgment should be affirmed, with costs. All concur.

(70 Hun, 250.)

MAYOR, ETC., OF CITY OF NEW YORK v. BRADY et al.
(Supreme Court, General Term, First Department. June 30, 1893.)

1. INDEMNITY-JOINT TORT FEASORS-PERSONAL INJURIES.

Where a city, which has paid a judgment recovered against it for personal injuries caused by a pipe left on the street where work was being done by a contractor, sues on the contractor's bond for indemnity, it must be affirmatively shown that as between the city and the contractor the latter was primarily liable for the damages, unless such proof is made unnecessary by some provision in the contract.

2. SAME EVIDENCE.

Where indemnity is sought by one who has been adjudged liable for damages arising from negligence for which another, as between themselves, was primarily liable, the judgment is evidence in the action brought for indemnity that plaintiff was liable for the damages, and, when notice was given to defend, of the amount of the damages, but it does not establish which of the wrongdoers is primarily liable.

& SAME.

In an action by a city on the bond of a contractor for indemnity after payment of a judgment recovered against it for personal injuries caused by a pipe left on the sidewalk, plaintiff introduced the judgment roll in the action against it. The judgment did not show the nature of the action, nor the particular cause for which it was rendered. The pleadings alleged the making of a contract between the city and the contractor to build a sewer; that the contractor negligently left a pipe across the sidewalk, over which plaintiff fell; and that the city negligently left the sidewalk in said dangerous condition. No issue as to the primary liability as between the city and the contractor was tried. Held, that the city could not recover on the contractor's bond.

4 SAME-CITY AND CONTRACTOR-LIABILITY ON BOND.

A contract with a city for building a sewer provided that the contractors should indemnify the city and save it harmless from all actions brought against it, and all damages to which it might be put by reason of injury to the person or property of another resulting from negligence in performing the work, or guarding it, or from any act or omission on their part. Held, that the contractors are not liable simply because a judgment has been recovered against the city for injuries caused by a pipe left on the sidewalk, but it must be shown that, as between the city and contractors, the latter were primarily liable.

5. SAME.

A contract with a city to build a sewer, providing that the contractors should indemnify the city and save it harmless from all actions brought against it or damages to which it might be put for injuries caused by their acts or omissions, provided further that so much of the money due them as might be considered necessary by the commissioner of public works might be retained by the city at its sole and exclusive option until all such actions or claims for damages should be settled. Held, in an action by the city on the contractors' bond, of which the contract was made a part, for indemnity for a judgment recovered against it for personal injuries, that it was no defense that the city made payments to the contractors after the injured person had filed his claim for damages against it.

Appeal from circuit court, New York county.

Action by the mayor, aldermen, and commonalty of the city of New York against John Brady and another. There was a judgment for plaintiff on a verdict directed by the court, and defendants appeal. Reversed.

August 31, 1883, Joseph D. Nutt and Patrick Kearns, who were partners under the firm name of Nutt & Kearns, entered into a contract in writing with the mayor, aldermen, and commonalty of the city of New York, whereby they agreed, in consideration of certain payments therein provided for, to construct, a sewer in Ninth avenue, between Eighty-First and Eighty-Third streets, in the city of New York, and to complete the same in a good and substantial manner. The contract contained the following provision: "That during the performance of the said work he (they) will place proper guards upon and around the same for the prevention of accident, and at night will put up and keep suitable and sufficient lights, and that he (they) will indemnify and save harmless the parties of the first part from all suits and actions of every name and description brought against them, and all costs and damages to which they may be put, by reason of injury to the person or property of another, resulting from negligence or carelessness in the performance of the work, or in guarding the same, or from improper materials used in its construction, or by or on account of any act or omission by the said party of the second part or his (their) agents." Simultaneously with the execution of said contract a joint and several bond was entered into by said Nutt & Kearns, John Brady, and William Hollweg, whereby they bound themselves in the sum of $5,000, the condition of the obligation being that Nutt & Kearns "shall well and truly, and in good, sufficient, and workmanlike

manner, perform the work mentioned in the aforesaid contract, and complete the same in accordance with the terms and provisions therein stipulated, and in each and every respect comply with the condition therein contained, then this obligation to be void; otherwise to remain in full force and virtue." On the 13th of November, 1883, Augustus W. Cruikshank was injured by falling over an unguarded pipe left across the west sidewalk on Ninth avenue. December 7, 1883, he filed his claim with the city for the damages sustained, which was not allowed. In May, 1884, he began an action in the supreme court against the mayor, aldermen, and commonalty of the city of New York, said Joseph D. Nutt and Patrick Kearns. He alleged in his complaint, among other things, as follows: "(4) That during the progress of the construction of said sewer or sewers in the said portion of Ninth avenue, and in the month of November, 1883, the defendants Joseph D. Nutt and Patrick Kearns and their servants, having unlawfully, carelessly, and negligently placed and extended a certain pipe over and across the sidewalk between Eighty-First and Eighty-Second streets, on the westerly side of Ninth avenue, which said avenue is a public highway, did negligently and carelessly suffer said pipe to remain extended and across said sidewalk uncovered and exposed, without guarding the same, and without placing any light or signal near thereto to indicate danger, thereby creating and continuing a public nuisance, and rendering said sidewalk insecure and dangerous to citizens and travelers. (5) That the defendant the mayor, aldermen, and commonalty of the city of New York and its servants, well knowing the premises, negligently left the said sidewalk in the dangerous condition aforesaid. (6) That on the 13th day of November, 1883, the plaintiff, while lawfully and carefully passing along said westerly side of Ninth avenue, between Eighty-First and Eighty-Second streets, on the sidewalk, entirely unaware and unsuspicious of danger, without fault or negligence on his part, but wholly by reason of the wrongful act, neglect, and default of the defendants, stumbled against said pipe, and fell over the same." The defendants filed separate answers, denying any liability. On the 6th of June, 1885, notice was given by the corporation counsel to Nutt & Kearns and to William Hollweg and John Brady of the pendency of the action, the purpose for which it was brought, that damages were claimed, and they were asked to defend the action at their own expense. The defendants Hollweg and Brady paid no attention to the notice, and refused to appear and defend the action. On the 6th of October, 1885, the action was brought to trial, and resulted in a verdict in favor of the plaintiff for $4,500 damages, and on the same day a judgment was ordered for $4,884.94 damages and costs, which the city paid to the plaintiff on the 23d of December, 1885, together with interest, amounting in all to $4,937.05. Afterwards this action was begun by the city to recover from these defendants the amount which it had been compelled to pay.

On the trial the plaintiff introduced in evidence the contract, the bond, and the judgment roll, proved the payment of the judgment and the amount expended in contesting the former action, and rested. Thereupon the defendants moved for a dismissal of the complaint on the ground that the plaintiff had not shown that the damages recovered by the judgment were caused by the negligence of the contractors, for whom the defendants were sureties. This motion was denied, and an exception was taken. The defendants then proved that the city paid on the contract the following sums at the following dates: December 1, 1883, $1,120; January 30, 1884, $1,120; March 31, 1884, $1,059.80; May 12, 1884, $1,050; June 10, 1884, $1,120; August 28, 1884, $2,218.92; May 2, 1885, $334.90; total, $7,918.62. The defendants also showed that August 26, 1884, the contractors acknowledged full payment of all their claims arising out of the contract, and executed a general release of all demands against the city. The defendants then proved that the action brought by Cruikshank was not noticed for trial as against the contractors, and that in 1888, on their motion, that action was dismissed for the want of prosecution. The defendants introduced sections 12, 14, and 17 of page 7 of the Revised Ordinances of the city, and offered to prove that soon after the contract was closed the contractors became and remained insolvent, which evidence was excluded, and an exception was taken. This was all the evidence received or offered on the trial. At the close of the evidence the defendants

again moved to dismiss the complaint, which was denied, and an exception taken, and thereupon the court directed a verdict in favor of the plaintiff for $7,140.73, the amount of the former judgment with interest, and $116.14, the expenses incurred in defending the former action. A judgment was entered, from which the defendants appealed.

Argued before VAN BRUNT, P. J., and FOLLETT and BARRETT, JJ.

James A. Deering, for appellants.

W. H. Clark, (Charles Blandy and Terence Farley, of counsel,) for respondents.

FOLLETT, J. There was no question of fact for the jury. The main contention on this appeal is, did the evidence establish a cause of action in favor of the plaintiffs? The learned counsel for the defendants insisted that their liability was not established, because it was not affirmatively shown that the judgment recovered by Cruikshank was for damages caused by some negli gent act or omission of the contractors, for which, as between them and the city, they were primarily liable. That it was necessary to show this fact, unless some provision in the contract rendered it unnecessary, is established by several cases in the court of last resort. City of Rochester v. Montgomery, 72 N. Y. 65; Mayor, etc., v. Troy & L. R. Co., 3 Lans. 270, affirmed 49 N. Y. 657; City of Cohoes v. Morrison, 42 Hun, 216, affirmed 116 N. Y. 662, 22 N. E. Rep. 1134; Oceanic Steam Nav. Co v. Compania Transatlantica Espanola, 134 N. Y. 461, 31 N. E. Rep. 987. Does the fact affirmatively appear from the judgment roll that the damages were caused solely by the contractors' negligence, or, if jointly with the city, that, as between them, the contractors are primarily liable? The judgment proper is in the ordinary form of judgments in common-law actions for the recovery of damages, and discloses neither the nature of the action nor the particular cause for which the judgment was rendered. The postea simply recites that a verdict was rendered for $4,500. The only other papers contained in the roll are the summons, complaint, and answer. In the third subdivision of the complaint it is set out that Nutt & Kearns entered into a contract with the city by which they undertook to build for it a sewer in Ninth avenue, between Eighty-First and EightyThird streets. In the fourth subdivision, which is quoted in the statement of facts, it is set forth that Nutt & Kearns negligently left a pipe across the sidewalk, over which the plaintiff fell and was injured. In the fifth subdivision it is alleged that the “city of New York and its servants, well knowing the premises, negligently left the said sidewalk in the dangerous condition aforesaid." In the sixth subdivision it is averred that "the plaintiff, without fault or negligence on his part, but wholly by reason of the wrongful act, neglect, and default of the defendants, stumbled against said pipe and fell over the same." The result of these allegations is that the injury was caused by the concurring acts of the contractors and of the city; but the issue whether the city or

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