The plaintiff agreed with one Carey on April 15, 1891, to furnish and hang certain gas fixtures in house at One Hundred and Fourth street and Eighth avenue for the sum of $1,350, to be completed May 1, 1891: On April 16, 1891, the following agreement was made by defendant with plaintiff:
“ In consideration of the sum of one dollar to me in hand paid by the within named Central Gas and Electric Fixture Company, the receipt of which is admitted, and of the sum of one hundred and ten dollars to be paid to me, and of other good and sufficient considerations, me hereunto moving, I hereby guarantee the payment of the within named sum of $1,350 by the said Carey to the said company for said fixtures when hung, as therein stated, and promise and agree to pay the same to the said company on the fifteenth day of May, 1891, unless the said Carey shall, on or before said date, pay the same to the said company in full.”
The failure of Carey to have the buildings mentioned in a condition so as to permit plaintiff to hang the fixtures on or before May first, and the fact that such fixtures were only partially put up at that time, and that subsequently nearly all-the remainder were placed in position, does not free defendant from his obligation' to pay therefor; that was the fault of Carey, not the fault of plaintiff. Plaintiff is entitled to a recovery against defendant, even though the contract made *226with Carey was only substantially performed. The plaintiff was not required to actually pay the $110 mentioned in the guarantee to defendant before he received the $1,350, provided for in such guarantee. The performance of these several acts were independent of each other, and it was only necessary for plaintiff to tender said $110 at most; the defendant was then required to perform his part of the contract., His failure to do so, entitled plaintiff to institute against him this cause of action.
We find no error.
Judgment affirmed, with costs.
Ehrlich, Ch. J., concurs.