#### Henry C. Briggs, Appellant, *against*Jacob Ottman, Respondent.

(Decided December 3d, 1888.)

Plaintiff bought from defendant two flying bridges, to be removed from premises occupied by defendant as tenant before the expiration of his term, on February 1st. On January 28th, plaintiff having begun to remove them, but not having prosecuted the work with vigor, defendant notified Mm that, if he did not send a force of men, others would be employed, and, plaintiff not complying, defendant gave the bridges to another, who took them down, although, soon after he began work', plaintiff offered to remove them in a day, if necessary. They were wholly removed .on January 30, twelve or fifteen men having been employed in the work the greater part of two days. *Held,*that plaintiff could recover from deiendant damages for breach of contract.

Appeal from a judgment of the General Term of the City Court of New York affirming a judgment of that court entered upon the verdict of a jury and an order denying a motion for a new trial.

■ The facts are stated in the opinion.

*Benjamin G.*Hitchings, for appellant.

*Louis C. Raegener,*for respondent.

Van Hoesen, J.

The plaintiff bought from, the defendant a smokestack and two flying bridges for twenty-five dollars, and was to remove them from the premises that the defendant occupied but which he was compelled- to surrender to his landlord. After agreeing to make the sale to the plaintiff, *47the defendant disposed of the smokestack to a Mr. Fagan. This breach of contract entitled the plaintiff to damages, and an adjustment was effected by the plaintiff’s agreeing to accept the sum of ten dollars and the two bridges. As I understand the evidence, the plaintiff had an absolute right to the two bridges. These transactions took place just prior to the 25th day of January, and the plaintiff _ knew that on the first of February the defendant was to yield possession of the property to which the bridges were attached. Although the consequences of a failure on the part of the defendant to remove the bridges on or before the first of February are not known to us, it is certain that the plaintiff was informed that it was the wish of the defendant that they should be removed before that day.

The plaintiff began to remove the glasswork and the bolts of one of the bridges on the 26th of January, but he did not prosecute the work with vigor, and accordingly, on the 28th of January, the defendant wrote to the plaintiff that if by one o’clock of that day he did not send down a force of men, other persons would be employed to remove the bridges. As the plaintiff did not at the time designated put his men to work, ” the defendant gave the bridges to Fagan, who took them down. Soon after Fagan began the work the plaintiff appeared, and said that he was ready, able, and willing to remove the bridges in a day, if such dispatch were necessary. It took twelve or fifteen men the greater part of two days to get the bridges out of the way. They were removed before the close of January 30th.

It appears, therefore, that though the plaintiff had, according to the defendant’s concession, until the first of February to remove the bridges, the defendant took the bridges away from him, and gave them to Fagan, on the 29th of January. This, clearly, he had no right to do. It was not impossible for the plaintiff to do what Fagan easily accomplished, and the defendant had no right to assume that the plaintiff would fail to do the work. A breach of contract is not to be presumed. In the case of *Shales*v. *Seignoret*(I Ld. Raymond 440), the defendant covenanted to transfer, on a certain day, on giving *48three days’ notice, ¿61,000 of bank stock. In an action on the covenant, the defendant pleaded that, on the day prior to the day appointed for making the transfer, the plaintiff had no bank stock. On demurrer, the whole court held the plea bad; because, though the plaintiff had no stock oil the day previous, yet he might have performed his contract within the time. See *Frost*v. *Clarkson*(7 Cow. 28).

It seems to me, therefore, that assuming, as the defendant assumes, that the agreement of the parties was not a contract for the transfer of the title to the bridges but merely a contract for work and labor to be performed before a specified time, the defense is not sustained.

But, as I understand the case, the bridges were sold to the plaintiff, and had been paid for by the accord and satisfaction that followed the breach by the defendant of his contract to sell the smokestack to the plaintiff. If this be so, what right had the defendant to give or sell them to Fagan, even if the plaintiff were slow in removing them ?

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Larremore, Ch. J., concurred.

Judgment reversed and new trial ordered, with costs to abide event.