This court decided upon a former appeal that the counterclaim interposed by the light company stated a cause of action (90 App. Div. 513; affd., 178 N. Y. 611). This decision materially limits the scope of our present inquiry.
Upon the former appeal it is true this court did not deem it nec*554essary to determine the question whether the contract was assignáble or not yet in its opinion on that appeal it was said that, the plaintiff “ must' be held to have accepted the light company as the party entitled to the contract which it had executed originally with the cement company, unless there, be something in the nature of . the contract which renders impracticable its performance with this assignee,” and it was said that no provision of the contract was found “ which by fair interpretation cannot be adjusted to the use of any assignee of such power.” While the conclusion that the plaintiff had accepted the light company as the party entitled to the contract might have been .based upon the plaintiff’s waiver of the light to insist otherwise, yet enough was said in the former opinion to indicate clearly that the court then thought, without so deciding, 1 that the contract was assignable. For the reasons then given, which heed not be repeated, we have lio hesitation in now holding the contract to be assignable.
We are not satisfied that the trial court was correct in its conclusion that the contract was terminated or abrogated before its assignment to the defendant light company. It is entirely clear, from the correspondence between the parties, that each was trying to get the other in default under the contract, yet if both were in default that would not alone be sufficient, in the face of the -claim of each that, the contract was in full force as against the other, to justify the conclusion that it had been terminated. There had been no election on the part of either party to it or by the assignee to treat the contract as terminated by reason of the breach thereof by the other ; nor, with the exception of the failure of the plaintiff to furnish power to the light company on the ground of the alleged invalidity of its assignment, has there been any refusal to perform. The light company is not here insisting upon this breach to relieve it from further performance, but is insisting that notwithstanding this refusal the plaintiff be compelled to perform. The plaintiff has all along insisted that the contract was in full force as against the cement company and that it could compel the cement company to take and pay for electrical energy under the contract. In its pleadings and Upon the trial the plaintiff insisted that at the time it gave its notice and ever since it had the necessary power and was ready to deliver it under the contract whenever the cement company- had installed *555the proper apparatus as required by the contract for receiving it. Each of the defendants too have always insisted that the contract was in full force. That being so, it is entirely clear that there has never been any agreement between the parties to terminate it. The parties have concurred in one thing at least and that is in each trying to hold the other to a full performance ■ of the contract. The attitude of the plaintiff in this respect continued long after the assignment of the contract to the light company, for the plaintiff received and retained two payments of monthly installments from the light company after the assignment had been made and after the plaintiff had full knowledge not only of the assignment, but that ■ the light company, by taking the assignment had, under the terms thereof, made itself liable to perform the same in all respects. ■ Under such circumstances there is nothing upon which to base the conclusion that the contract was terminated or abrogated prior to the assignment.
But even if the contract has not been terminated and has been assigned to the defendant light company, these facts do not in our opinion affect the correctness of the judgment appealed from, for neither party has shown itself entitled in this action to any further or different relief than has been there given.
■ The trial court found that neither on the 29th day of September, 1902, nor at any other time while said contract was in force, was the plaintiff able to deliver electrical power at its sub-station in regular service or deliver power to the cement company as provided and contemplated in and by said contract, and it also found that on the 30th day of September, 1902, the defendant cement company was not and has not since been able to take or receive the electrical energy from the plaintiff under ánd in accordance with the terms and conditions of said contract. The evidence in. support of these findings is referred to in the opinion of the learned trial justice, and we need not detail it here. It is enough for us to say that after carefully examining all evidence on the subject we regard it not only as sufficient to support but as necessitating such findings. Under the first of these findings the complaint was properly dismissed for the reason that the plaintiff had no cause of action against the defendants at the time it commenced its action. (Sherman v. Foster, 158 N. Y. 587.)
*556The plaintiff was clearly not required to furnish electrical energy to the water rheostat installed by the cement company, for the contract provided that such energy should be furnished instead to transformers at the pressure specified therein.
The defendant light company claims that it has installed on the premises of the cement company motors and transformers in accordance with and guaranteed as required by the contract. This is disputed by the plaintiff and the trial court has not found that such apparatus and transformers .have been so installed and guaranteed.
The contract required that the niotors. and transformers to be. used in connection with the energy supplied should b.é guaranteed by the manufacturers, the motors to have a “ power factor ” and the transformers to have an “ efficiency as high as any obtainable, in the market.”
In the contract under which the defendant light company purchased the motors and transformers which it claims meet the requirements of the contract, the' manufacturers agree that the “ apparatus named in this, contract is guaranteed to. be of our highest standard manufacture, both mechanically and electrically.”
It cannot be successfully contended that this guaranty comes, anything near the requirement. The mere inspection of the con- ' tract containing the requirement, and the one containing the guaranty, and comparing the one with the other, shows clearly that there has been a complete failure in this respect.
Manifestly until the apparatus fpr receiving eleeirical energy has been installed on the premises of the defendant cement company, as provided for by the contract, and has been guaranteed by the manufacturers thereof, as required by such contract, the defendant light company is in no position to demand specific performance, of the contract to deliver electrical energy. This appears clear notwithstanding the provision of the contract requiring the power company to “ keep available for use” the specified amount of electrical energy and the covenant therein on-the part of the cement company to pay for the “ right to use ” the power so kept available.
The plaintiff having been unable to supply power in regular service at the time-it gave the notice to the cement company that it was able so to do, it follows that the five-year period mentioned in the contract never commenced to run, and, therefore, that the *557light company was under no obligation to make the two payments to the plaintiff of monthly installments under the contract which it did on the false assumption that such period had commenced. These payments having been made under a mistake of fact were properly recovered by the defendant light company under its counterclaim against the plaintiff, hut we think such light company has not shown itself entitled to any further relief against the plaintiff in this action.
The judgment should be affirmed, with costs to the defendant cement company against the plaintiff and without costs to the other parties.
All concurred, except Parker, P. J., not voting.
Judgment affirmed, with costs to the defendant cement, company against the plaintiff and without costs to the other parties.