#### Charles A. Kinch, Appellant, *v.*Charles F. Moadinger et al., Respondents.

(Supreme Court, Appellate Term,

March, 1899.)

Contract — Creditor entitled to payment in trade cannot exact a money equivalent.

Where livery-stable keepers mutually agree that any balance o£ indebtedness, resulting from the reciprocal use of their carriages and. horses, shall be paid in livery hire by the party found a debtor, the creditor cannot compel the debtor to pay any money even though, because the creditor has retired from business, payment in trade will be of no value to him.

Appeal from a judgment in favor of the defendants, rendered in the Municipal Court of the city of New York, borough of Manhattan, for the tenth district.

Isaac P. Coale, for appellant.

Norman A. Lawton, for respondents.

Leventritt, J.

An agreement was entered into between the parties, both proprietors of livery stables, providing for the reciprocal use of their respective horses and carriages as the exigencies of the business of each should require. Whatever balance of in*779debtedness should result from such mutual accommodation should be discharged by the debtor furnishing further livery hire equal in value to such balance. Ho payment in money was contemplated.

That course of dealing was pursued during four years, the account standing now in favor of the one, now in favor of the other. The differences were never liquidated. Shortly after the expiration of that period the plaintiff retired from business, claiming a balance in his favor arising from their mutual dealings in the sum of $122, for the recovery of which he brought this suit. The defendants dispute the amount, assert that the plaintiff is entitled to satisfaction only by equivalent carriage hire, and plead an assigned counterclaim. Upon the conflicting evidence introduced on these various issues, the justice disallowed the counterclaim but rendered judgment in favor of the defendants, thus maintaining their version of the agreement. Since the defendants took no appeal from the disallowance of their counterclaim, there comes before us for disposition only the point contended for by the appellant that, inasmuch as his retirement from business rendered payment in trade valueless, he became entitled, notwithstanding the provisions of the contract, to demand money. This contention is not sound. A party is bound by the terms of his contract and no satisfactory reason can be urged against the enforcement of the condition under consideration.

Where the obligation of a party is to pay in specific articles or in specific services and he is not in default, he cannot be compelled to pay in money. Battle v. Rochester City Bank, 3 N. Y. 88; Burrall v. Jacot, 1 Barb. 165; Hunt v. Westervelt, 4 E. D. Smith, 225. The plaintiff could recover cash for the excess only upon proof of a breach of the agreement on the part of the defendants in their refusal to furnish carriage hire, long Island R. R. Co. v. Verree, 69 N. Y. 486. There is no proof in the record that the defendants were not at all times willing to perform the terms of the agreement devolving on them. The plaintiff could not, by retiring from business, impose additional obligations on the defendants. That he placed himself in a position where strict performance became unprofitable is his misfortune and he alone must bear the consequences.

The judgment must, therefore, be affirmed.

Freedman, P. J., and MacLean, J., concur.

Judgment affirmed, with costs to respondents.