We concede that if this litigation presented merely a case where the defendant's predecessor was charged with misconduct as to the collateral, the plaintiff could be relieved only on proving that she had been damaged by such misconduct and only to the extent of such damage. But that is not the question in this case. The plaintiff made a present transfer of her bonds and mortgages to the bank, defendant's predecessor, to take effect in the future only upon the performance of a condition, to wit, that the bank should have exhausted the other collateral it held for the debt as well as the assets of the copartnership debtors and the assets of the party who was to continue the business. *Page 519 This was a condition precedent to any title vesting in the bank. The bank has failed to comply with that condition, though expressly notified by the plaintiff so to do, and, therefore, has acquired no title under the assignment. There is nothing anomalous about such a transfer. By the statute the same estates (with a single exception) may be created in personal property as in real property. (Real Property Law, § 11.) Every text book on real estate recognizes that a grant may be made contingent on the performance by the grantee of some condition, and that if he fails to perform the condition no title vests.
MILLER, J., not sitting.