By the terms of the agreement of January 12, 1900, between the plaintiff and the defendant, it was the dnty of the plaintiff to tender to the defendant at the time any of the notes mentioned in the said agreement came due so much of “ $25,000, of the capital stock of the Eealty & Personalty Beporting Company as will at the rate of $3 per share equal amount or amounts of aforementioned notes as paid by said party of second part hereto ” — the defendant herein. The evidence does not show that such a tender was made. Eo tender having been made, the plaintiff did not have a cause of action on the notes mentioned in the complaint or either of them at the time he began this action. The plaintiff’s failure to make the tender before mentioned was a breach of the contract between plaintiff and defendant, and absolved the defendant from all obligations to perform the contract while plaintiff’s default continued. Wharton & Co. v. Winch, 140 N.Y. 293. See'also Raabe v. Squier, 148 id. 81.
The judgment appealed from is reversed and a new trial is ordered, with costs to the appellant, to .abide the event.
Present: Freedman, P. J., Tenaz and Gildebsleeve, JJ.
Judgment reversed and new trial ordered, with costs to appellant, to abide event.