(dissenting):
It is also recited in the agreement upon which this action was predicated that on the 19th of April, 1919, an agreement was made between the plaintiff herein and one Isaac Cohen and the defendant, by which Cohen and the defendant agreed to sell and deliver to the plaintiff one hundred shares of the capital stock of Greenfield Cohen, Inc., and that fifty shares of the stock had been fully paid for and delivered to the plaintiff and that the remaining fifty shares were to be delivered to him upon certain payments made and to be made by him to them and that the defendant was desirous of purchasing the fifty shares, which had been paid for and *265delivered, to the plaintiff and all of the plaintiff's rights to the remaining fifty shares for which plaintiff had paid in part but which had not been delivered to him. This is an action on the contract made between the plaintiff and defendant on the 5th of January, 1920, to recover the balance of the purchase price. of the stock which the defendant by that contract agreed to pay. As I construe the 5th paragraph of that agreement, quoted in the opinion of Mr. Justice Page, in the event that the defendant failed to make any of the payments which it was therein provided he should make, it was agreed that the stock should remain the sole property of the plaintiff and that the defendant should forfeit to the plaintiff as liquidated damages all moneys theretofore paid on account of the purchase price of the stock and that the plaintiff might enforce any and all rights which he had under and pursuant to the agreement of April 19, 1919, to which reference has been made, which was not to be deemed abrogated by the later agreement of January 5, 1920, unless there was full performance thereof by the defendant. Defendant having failed to make all of the payments as provided in the agreement of January 5, 1920, forfeited his right to acquire the stock thereunder; and being thus guilty of a breach of the contract, he could maintain no action thereon either for the recovery of the stock or of the payments which he had made on account of the purchase price thereof. (Page v. McDonnell, 55 N. Y. 299; Lawrence v. Miller, 86 id. 131; Chaude v. Shepard, 122 id. 397.) By this agreement, therefore, the parties merely stipulated their legal rights with respect to the stock in the event of a breach of the contract by the defendant in accordance with settled law applicable to such a breach. I think that the effect of the agreement was to relieve defendant from making any further payment for the stock in case he made default and that in that event the plaintiff was relieved of any obligation with respect to selling and delivering the stock to the defendant under that agreement of April 19, 1919. As I view the case, it was optional with the defendant whether to continue making the payments and thereby acquire the right to the delivery of the stock to him or to forfeit such right by defaulting with respect to all, and in that event plaintiff could maintain no action against *266the defendant for the balance of the purchase price. That is the sole point presented for decision on this appeal for I think we are not now concerned with the validity of the stipulation of the parties to the effect that the plaintiff might retain all payments made by the defendant as liquidated damages. I am of opinion, therefore, that the complaint fails to state a cause of action and that the demurrer thereto on that ground was well taken and should have been sustained and that the order should be reversed, with ten dollars costs and disbursements, and the demurrer sustained, with ten dollars costs.
Greensahm, J., concurs.
Order affirmed, with ten dollars costs and disbursements.