[The learned judge, after stating the facts, and reviewing Van Bokelin v. Ingersoll, 5 Wend. 315; Macy v. Wheeler, 30 N. Y. 231; McMillan v. Vanderlip, 12 Johns. 165 ; Reab v. Moor, 19 Id. 337; Webb v. Duckingfield, 13 Id. 390 ; Burrill v. Cleeman, 17 Id. 72; Smith v. Brady, 17 N. Y. 113; Cunningham v. Jones, 20 Id. 486; Baker v. Higgins, 21 Id. 397; Oakley v. Morton, 11 Id. 25; Harmony v. Bingham, 12 Id. 99; Tompkins v. Dudley, 25 Id. 212; Adams v Nichols, 19 Pick. 275, expressed the opinion that the contract of the plaintiffs intestate with the defendant was for the round voyage, and an entirety; and that the compensation, therein specified, was to be made on its performance; that such performance was a condition precedent, and no action could be maintained until such performance had taken place; unless the party, upon whom such performance rested, established a valid and legal excuse for such omission or non-performance; that none such had been shown in this case, and, as a consequence, neither the plaintiff nor her intestate was entitled to claim such compensation. The majority of the court not concurring in this view, the opinion concluded as follows:]
The majority of the judges, are, however, of the opinion, that this point was not raised upon the trial of this action, and therefore, is not now available to the defendant. But they are of the opinion, that the exception to the charge, as to the time for which wages were recoverable, if recoverable at all, that they could not be recoverable for a longer period than from the inception of the contract sued on, to the breaking up of the voyage, presents the question distinctly, for what period of time the plaintiff is entitled to recover the wages of the captain, from the defendant. This court is of the opinion, that such recovery must be confined to the period during which Captain Jenkins performed the services as master, namely, from the time of the inception of the voyage on February 8, 1853, to the date of its abandonment and breaking up, September 8, 1853.
The judgment appealed from is therefore affirmed, without costs cf this appeal, if the plaintiff elects and consents to deduct all allowances for wages after September 8, 1853, and interest thereon included in the judgment. If she does not so elect and consent, within twenty days after notice of this judgment, then *445the said judgment is reversed, and a new trial ordered, costs to abide the event.
All the judges concurred in this conclusion.
Judgment, if plaintiff accepts the above terms, affirmed; otherwise reversed and new trial ordered, costs to abide event.