27 N.Y. St. Rep. 264 | City of New York Municipal Court | 1889
The draft was delivered by Father Columbia, as an advance payment on the proposed charter-party. Performance of the contract was entered upon, and the amount of the draft earned by such performance. It is immaterial, therefore, (so far as this litigation is concerned,) whether the charter was signed or not. The failure to execute it was owing to new conditions sought to be imposed, and not capricious refusal. The defendants, as-acceptors, became primarily liable on the draft to the holder thereof, and the failure to sign the charter-party is no defense to them. The case is unlike Bookstaver v. Jayne, 60 N. Y. 146. There the defendant indorsed a note on. conditions personal to himself, which were not performed by the plaintiff. Here the acceptance was unconditional, and, as between the drawer and acceptors, founded on a valid consideration. If Father Columbia has any grievance, he has his remedy against those at fault. The right of action, if any, is, however, personal to him, and is not available to the defendants as acceptors, for it does', not concern them. See Gillespie v. Torrance, 25 N. Y. 306; Springers v. Dwyer, 50 N. Y. 19; Lasher v. Williamson, 55 N. Y. 619. It might perhaps have been available, if Father Columbia had been sued with the acceptors. Springer v. Dwyer, supra. Indeed, Father Columbia lias availed himself of this remedy as a personal right, and- has an action now pending against Beach & Miller for damages, including the amount of the draft in suit here. In that action his rights may find full protection. The plaintiff is entitled to judgment for $356.12, with costs.