| N.Y. App. Div. | May 25, 1942
— In an action to recover damages in the face amount of certain debentures held by plaintiff and issued by defendant pursuant to a trust indenture between defendant and a trustee, on the ground that defendant breached a sinking fund provision contained in the debentures, the order denying plaintiff’s motion for summary judgment, and the order granting defendant’s motion for summary judgment and the judgment dismissing the complaint entered thereon, must be affirmed where it appears under all the facts that defendant’s failure to pay cash into the sinking fund as provided in the debenture did not amount to a renunciation or repudiation of its obligation to pay the principal of the bonds at maturity in 1943. If the complaint be considered as stating a canse of action either to accelerate the time of payment of the principal of the debentures on the ground of a completed event of default by the defendant in failing to make the sinking fund payments, or for damages for the breach of a covenant by the defendant to pay the principal of the bonds, or of some of the bonds, before maturity, it cannot be sustained unless the trust indenture be relied upon. Since it would, therefore, be necessary for the plaintiff to invoke the aid of certain provisions of the trust indenture to validate his cause of action, he must plead and prove compliance with the requirements defined in that instrument as conditions precedent to the maintenance of the action by him as an individual holder of debentures. It is conceded that plaintiff has not performed the conditions precedent and he is, therefore, barred from maintaining this action under the restraining clause contained in the trust indenture. The order denying plaintiff’s motion for summary judgment, and the order granting defendant’s motion for summary judgment, and the judgment dismissing, the complaint entered thereon, are unanimously affirmed, with ten dollars costs and disbursements. Present — Lazansky, P. J., Hagarty, Johnston, Adel and Close, JJ.