It appears from the complaint that the plaintiff and the defendant Melton entered into an agreement whereby it was agreed that Melton should enter into a contract with Havemeyers & Elder to perform the work of wrecking a building in Brooklyn in accordance with certain plans theretofore submitted; that the said contract should be in the name of the defendant Melton alone, but to be for the benefit of the plaintiff and both defendants; that the plaintiff should advance to Havemeyers & Elder $12,000, which was required to be paid to them by the contract; that the plaintiff was to furnish necessary funds for carrying out the contract, and the profits of the enterprise should be divided, forty per cent to the plaintiff, thirty per cent to each of the defendants. The agreement was in writing, and a copy is annexed to the complaint; that thereafter the plaintiff paid to Havemeyers & Elder this sum of $12,000, and Walter Melton entered into a contract with Havemeyers & Elder, a copy which was annexed to the complaint; that Melton did not complete and carry out his contract with Havemeyers & Elder and did no work thereunder, hut thereafter Melton commenced an action in the Supreme Court of the State of New York to recover damages for a breach of the contract by Havemeyers & Elder in refusing to permit defendant Melton to carry out and complete the same, and on the 11th of November, 1914, Melton recovered a judgment against Havemeyers & Elder in the sum of $12,153.98, which plaintiff alleges, although in favor of Melton alone, was, in fact, the property of the plaintiff and the defendants; that Melton is financially irresponsible, and that this judgment has not been paid, and asks that it be adjudged that Melton holds *287this judgment against Havemeyers & Elder in trust for himself and the defendants; that pending the trial Melton be restrained from collecting the said judgment, and that any proceeds of the judgment be divided between the parties to this action according to their respective rights and interests.
The answer alleges that the defendant Havemeyers & Elder failed to perform the contract with this defendant Melton; that Melton brought an action against the firm of Havemeyers & Elder to recover damages for a breach of the contract made with the plaintiff; that the plaintiff, in violation of the defendant’s rights, “terminated, canceled and annulled” the agreement between the plaintiff and the defendants and, for the purpose of preventing the defendant from sharing in any of the profits to be realized on the defendant’s contract with Havemeyers & Elder, withdrew.the $12,000 that plaintiff had paid to Havemeyers & Elder, and the plaintiff entered into a new contract with Havemeyers & Elder eliminating the defendant Melton and denying him any interest, by which agreement the said plaintiff undertook to do the work required to be performed by Melton’s contract with Havemeyers & Elder, and plaintiff completed that contraet; that to induce Havemeyers & Elder to refuse to perform the contract with Melton and to obtain anew contract in his own name for the work, plaintiff executed and delivered an indemnity bond to Havemeyers & Elder to insure it against any loss that Havemeyers & Elder might sufer by reason of any claim or action that the defendant would bring against them. And subsequently defendant brought his action against Havemeyers & Elder on to trial and recovered this judgment of $12,153.98. Upon the trial there was no effort to prove that the contract between Melton and Havemeyers & Elder was in any way performed or that any profits were realized therefrom, nor was either the pleadings or the judgment roll in the action brought by Melton against Havemeyers & Elder introduced in evidence. We have, therefore, an agreement between the plaintiff and the defendants, that defendant Melton should execute a contract with Havemeyers & Elder and the parties to this action should divide the profits. That contract was never carried out, and subsequently plaintiff withdrew the money that he had *288advanced to Havemeyers & Elder and procured a new contract with them for doing the work in which defendant Melton had no interest, and plaintiff performed the work under that contract and received for his own use the consideration paid for performance of the new contract with Havemeyers & Elder; that defendant Melton brought an action to recover damages for breach by Havemeyers & Elder of the contract with him, and has recovered damages for that breach against Havemeyers & Elder.
But it is quite clear, it seems to me, that whatever right the plaintiff had in the Melton contract was abrogated by the failure of the parties to complete that contract, and by plaintiff’s subsequently obtaining from Havemeyers & Elder a new contract to do the work contemplated in the contract between plaintiff and Melton. Plaintiff is endeavoring to enforce a contract which he alleges the defendant Melton violated, and which Melton alleges the plaintiff violated, but which never was performed by either party, and certainly not by the plaintiff. Upon the conceded facts in the pleadings, I do not see how this plaintiff is entitled to enforce his contract or recover from Melton any part of any damage that he has recovered from Havemeyers & Elder by reason of their failure to comply with the contract which that firm had with Melton for doing this work. Certainly, Melton has received, no profits on this contract with Havemeyers & Elder that he agreed to divide with the plaintiff and defendant Pritchett, and until a receipt of some profits or the completion of the contract, it does not seem that an action for an accounting would lie.
I think the judgment should be modified by providing that the judgment itself should not be a bar to the further action between the parties in the event that it appears that the defendant Melton has received any profits upon the contract with Havemeyers & Elder to which plaintiff would be entitled, and as thus modified affirmed, with costs to the respondent.
McLaughlin, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event. Order to be .settled on notice.