Burkard v. Stephan Building & Construction Co. ( 1913 )

Rich, J.: .

The respondent only undertook to pay the interest and costs by May thirty-first, and the plaintiff to postpone further proceedings until such time, and to discontinue the action in the event that the payment was made. The stipulation was without consideration and I believe it to be invalid (Feldman v. Rockford Co., 70 Misc. Rep. 66; 126 N. Y. Supp. 646; Trenor v. Le Count, 84 Hun, 426), but whether valid or invalid its force and effect could only be determined by answer and trial of the issues. (Trenor v. Le Count, supra; Cole v. Hinck, 120 App. Div. 355; 105 N. Y. Supp. 407.) The defendant did not answer, and no such issue was tendered. The respondent contends, however, that the payment of interest to July first furnishes an adequate consideration. If we concede this, the payment of sixty dollars was but a partial performance of the terms of the stipulation or agreement, and the respondent was not entitled to the benefits of the agreement until it had fully performed. (Odell v. Hoyt, 73 N. Y. 343.) The respondent had failed to comply with the terms of the stipulation, it had not answered, and the plaintiff was entitled to proceed with the action. If the agreement was valid, the learned court had no power to relieve the respondent from strict compliance with its terms by forcing upon the plaintiff an agreement he never made.

It follows that the order must he reversed, with ten dollars costs and disbursements, and plaintiff’s motion for confirmation of the referee’s report and for judgment of foreclosure and sale granted, with costs.

Burr, Thomas, Carr and Putnam, JJ., concurred.

Order reversed, with ten dollars costs and- disbursements, and plaintiff’s motion for confirmation of the referee’s report and for judgment of foreclosure and sale granted, with costs.