#### David Denehey, as Administrator, etc., of Ellen Denehey, Deceased, Appellant, *v.*Margaret McCloud, Respondent.

(City Court of New York, General Term,

March, 1898.)

. Contracts — Promise to pay when able.

Proof that a debtor promised her creditor that she -Would “ pay her more just as quick as she could,” and that she (the debtor) “ thought that she would pay her (the creditor) the balance monthly,” does not tend to establish a promise to pay when able — rendering it a condition precedent, to a recovery upon the promise, that .affirmative proof of an ability to pay be shown.

Appeal from a judgment -entered upon the dismissal of the plaintiff’s complaint upon a trial before the court and a jury, and from an, order denying the plaintiff’s motion for ja n,ew trial.

Samuel I. Frankenstein, for appellant.

James A. Dunn, for respondent.

O’Dwyer, J.

The action is brought to recover the sum of $300, being a, balance of an agreed purchase price of a half interest in a dry-goods store in New York city. The action is brought by an administrator, to whose intestate this cause of action was assigned by the original party-to the agreement of sale, Maria A. Walsh. ' The complaint substantially sets forth,— that Maria! A. Walsh, thé assignor of said cause of action, and this defendant entered into a copartnership for the buying and selling of dry-goods, under- the style of Tanahy *&*Co., Tanahy being the maiden name of -this defendant. That said Maria A. Walsh, contributed to the copartnership business as her share the sum of $350, and five months thereafter, it was agreed between the said Walsh and this. *249defendant, that said Walsh should withdraw from said business and assign her interest therein to this defendant, in consideration whereof this defendant agreed to pay her the sum of $350: That pursuant to said agreement, said Walsh did withdraw from said business and did assign to this defendant her interest therein and that this defendant paid to Said Walsh the sum of $50 on account thereof, leaving a balance due of $300, no part of which has been paid. That this claim of $300 Vas assigned by said Walsh to the plaintiff’s intestate.

The answer substantially admits all the allegations of the complaint,. except that it denies that the consideration- for the sale of the half interest of said businessi Vas $350, and avers, to the contrary, that the agreed price was $100, which sum of $100 the defendant did duly pay to the said Maria A. Walsh pursuant to said agreement.

The only point in issue, therefore, was whether the original price'was $350 or $100, and whether only $50 on account of the $350 was paid or whether the full sum of $100’ was paid.

At the. trial said Maria A. Walsh was called by the plaintiff, who testified to all the foregoing facts, and the plaintiff ffested.

The defendant’s counsel then moved to dismiss the complaint on the ground that it appeared from the testimony of the said Maria A. Walsh that the defendant agreed to pay her the $350 when she was able, and that there being no evidence that the defendant was ever able to pay it, the plaintiff had failed to make out a *prima facie*lease, and that hence the complaint must be dismissed.

The court remarked that it appeared from the evidence that the defendant promised to pay 'when -she could, and that, in order to tentitle the plaintiff to a recovery, there must first be proof of the defendant’s ability ¡to pay.

But the fact is that there was no evidence that there ever was an agreement made between Miss Walsh and the defendant, that she, the defendant, should pay the purchase price only when she could or only when she was able to do so — and not otherwise.

Miss Walsh was recalled and testified that, after she had received from the defendant the first payment of $50 on account, the defendant promised that she. would pay her more just as quick as she could; that she, the defendant, thought that she would pay the balance monthly,, and that finally and about a year thereafter, when Miss Walsh again asked her for the payment of the balance, *250they-both went to a notary public for the purpose of having the defendant execute her note to secure to Miss Walsh the payment of the. balance, but a disagreement arose as to the amount for which the-note should be made and nothing w;as/done. "

The motion to dismiss was then granted, upon the alleged ' ground that the evidence showed that there was an agreement made between Miss Walsh and the defendant whereby Miss Walsh agreed to postpone thei payment of the purchase price of her half interest in the business until the defendant Was able to pay it, or until she could pay it;' aud that hence, before a recovery could he had.in this action, there must he affirmative proof of the defendant’s ability td pay, aud that such proof being lacking, the complaint must of consequence be dismissed,. and to this ruling the plaintiff duly excepted. The motion was improperly granted, and it follows that the judgment and order appealed from should be reversed and a new trial .ordered, with costs to the appellant to abide event. , "

Eitzsimohs, Oh. J., and Oloott, j., concur.

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