#### Samuel Penniman, Appellant, *v.*Amelia Jane La Grange, Respondent.

(Supreme Court, Appellate Term,

June, 1898.)

1. Stipulation. — It cannot be withdrawn on the trial.

A written stipulation of the defendant, although made in an action on a contract before the answer was amended, admitting the making of the contract, part performance by the plaintiff as alleged in the complaint, and nonpayment by the defendant of certain required monthly installments, cannot be withdrawn upon the trial.

2. Entire contract, payable in installments — Measure of damages.

*Semble,*that a recovery *pro tanto*can be had on a contract to advertise a business for a year upon the payment of monthly installments, although the advertiser failed at the end of six months, it appearing that the customer had never paid any monthly installments whatever.

Aureal from a judgment of the Eighth District Court, in, favor of the defendant.

Ginshurg *&*Mathot, for appellant.

William J. Walsh, for respondent.

Gildersleeve, J.

On or about December 23, 1896, 'defendant entered into a contract with plaintiff’s assignor, the United States Guide *&*Information Company, by which she employed said company for the term of twelve months from1 January 1, 1897, to advertise and recommend her restaurant; and, in consideration for such services, defendant agreed to pay said company the sum of $120, payable in monthly installments of $10, at the end of each month. Plaintiff claims that the company fulfilled its part of the-*654contract for the six months ending June 30, 1897, and that there is now due on such contract for said six months the sum of $60; The ■defense is based upon the claim that the company failed to complete its contract for the 'entire year; that in July, 1897, it became defunct and went out of existence; and that the contract is an entire one, and no recovery can be had in the absence of complete performance.

On the .trial, before any witness had been called, the counsel for the plaintiff offered in .evidence the following stipulation, to-wit: “ Defendant’s counsel admits the making of the 'contract, the per- ■ form nuce of the contract for the time specified in the complaint, and nonpayment.” This stipulation was ruled out by the trial justice, ;on defendant’s objection, upon the ground that it was irrelevant, incompetent and immaterial, and on the further ground that said stipulation applied only to the issues raised by the original answer, and not to those raised by the amended answer, which last was made and filed subsequent to the making of said stipulation. To this ruling plaintiff duly excepted.

It is a well-settled rule that where an absolute .and unqualified admission is made in a. pending caus¡e, whether by written stipulation of the attorney, or as matter of proof on the hearing, it ¡cannot be retracted unless by leave of the court. Converse v. Sickles, 16 App. Div. 49. "We .think the stipulation was material.and competent, and that its rejection was error. It showed that plaintiff’s assignor had fulfilled its part of the .contract, for the first six months, and that defendant had defaulted in the payment of the monthly installments of $10, due at the end of each of these six months. In the case of Moore v. Taylor, 42 Hun, 45, it was held that á contractor who is entitled by the terms of the contract to receive payment of installments pending the work is entitled to recover-such installments, notwithstanding his refusal to complete the work on account of their nonpayment; although such failure to’ pay installments when due, while it m:ay authorize an abandonment of th'e work, will not entitle the contractor ¡to "recover prospective damages as it does not prevent performance. In. the case of Strack v. Hurd, 28 Abb. N. C. 143, the General Term, of the Supreme Court, in the third department, held that the law will not compel a contractor to complete performance of an entire contract, as a condition of recovery, where the ’other party has failed, on his part, ¡to pay' stipulated installments at the time they fell due, and while he is in default on such payments; but that, if such 'default exists, *655the contractor may recover for the work actually performed, at the contract price.

Wie are of the opinion that the judgment should he reversed and a new trial ordered, with costs to appellant to abide the event.

Beekman, P. J., and Giegerich, J., concur.

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