First Department, April, 1921. [Vol. 196 that has been produced in this case, number one, has the plaintiff complied with the terms of his contract; has he performed his contract? If you find that he has, then you have got to find the further fact from the evidence that the certificate which he was obligated to produce to the defendant before he could demand payment was unreasonably withheld from him by the architect." And on this question of an unreasonable refusal by the engineer to give the certificate, the court charged: "If you find the plaintiff's version is the correct one, your verdict should be for the plaintiff for such an amount as the contract calls for, if you find that the contract was fully performed." The complaint being based upon allegations of complete performance by the plaintiff, he could not recover unless his proof established those allegations. Concededly he never obtained the certificates which he was required to obtain before he would become entitled to payment under the agreement. Therefore, his remedy if any was to be had upon the basis of suitable allegations in his complaint, in which he could set forth the performance of the work under the agreement and the due performance of the same on his part, save for the production of the certificates of the engineer and as to those he should have pleaded the facts excusing their non-production. In Weeks v. O'Brien (141 N. Y. 199, 202), the court said: "By the true construction of the building contract, the procuring by the plaintiff of the certificate of the architect that the building had been completed, was a condition precedent to his right to recover under the contract the last installment of $6,158, for which this action is brought. To meet this condition and to show a right of action, it should have been averred in the complaint, either generally or specially, that the conditions precedent had been performed, or if the plaintiff relied upon a matter excusing him from procuring this certificate, the facts should have been stated." In Stern v. Mc Kee (70 App. Div. 142) the court said (at p. 145): "Plaintiff having pleaded full performance of the contract could not recover without establishing that fact. This he did not do, and, therefore, the motion of the defendants at the close of the trial to dismiss the complaint on that ground should have been granted." And at page 146: App. Div. 22] "The plaintiff, therefore, having alleged performance, was bound to establish that fact, and failing to do so, no recovery. could be had. (La Chicotte v. Richmond R. & El. Co., 15 App. Div. 380; Schnaier v. Nathan, 31 id. 225; McEntyre v. Tucker, 36 id. 53; Cox v. Halloran, 64 id. 550.) But in this connection it is suggested that the recovery can be upheld upon the theory that Shainwald was excused from full performance by reason of the defendants' refusal to proceed. This cannot be done for the reason that there are no appropriate allegations in the complaint which would permit a recovery upon that ground. The plaintiff having predicated his right to recover on the breach of the agreement, was bound to allege and prove performance on the part of his assignor, or an excuse for nonperformance, and if an excuse were relied upon, then he was bound to allege facts constituting such excuse, and, in addition thereto, that he was at that time ready and had the ability to perform, and would have done so except for the acts of the other parties to the contract." The respondent herein seeks to sustain this recovery upon the authority of Smith v. Wetmore (167 N. Y. 234), but this court in Tribune Assn. v. Eisner & Mendelson Co. (70 App. Div. 172) passed upon this contention, and Mr. Justice LAUGHLIN said therein (at p. 173): The contention of the plaintiff is that it was ready and willing to perform, but that the defendant failed to furnish the advertising matter with which it could perform, and its counsel cites the case of Smith v. Wetmore (167 N. Y. 234) to sustain this proposition. In that case the evidence showing performance on the part of the plaintiff was received without objection, and the complaint was for that reason amended on appeal to conform to the proof, and we think the rule stated by the court, that when performance of a contract is alleged by the plaintiff and denied by the defendant, it is competent for the plaintiff to prove that the defendant would not allow him to perform, or repudiated the contract, or had committed a breach of it himself by hindering performance, or refusing to abide by its obligations,' does not apply in this case. Here the defendant did not repudiate the contract. It merely failed to call upon the plaintiff to perform, and the plaintiff made no request for performance on the part of the defendant. We think this case is governed rather by the doctrine now First Department, April, 1921. [Vol. 196 firmly established that under a complaint for full performance of a contract, proof of matters excusing or waiving performance is not admissible, and recovery may not be had upon that theory. (Gatling v. Central Spar Verein, 67 App. Div. 50; 73 N. Y. Supp. 496; Fox v. Davidson, 36 App. Div. 159; 55 N. Y. Supp. 524; La Chicotte v. Richmond R. & El. Co., 15 App. Div. 380; 44 N. Y. Supp. 75; Weeks v. O'Brien, 141 N. Y. 199; 36 N. E. Rep. 185.)" In the case at bar the testimony received on behalf of the plaintiff, excusing non-performance, was all received over the defendant's objections and exceptions, which repeatedly called attention to the variance between the pleading and the proof, and no motion was ever made to conform the pleadings to the proof. Furthermore, the case was submitted to the jury on an erroneous charge, which allowed them to render a verdict for the plaintiff in an action based solely upon full performance of a contract, if they found that partial failure to perform had been excused or waived. The determination of the Appellate Term and the judgment and order of the City Court must, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event. While ordinarily the conclusion reached by us would lead to the dismissal of the complaint, which should have been done upon defendant's motion at the close of the plaintiff's case, still upon this record we are satisfied that the ends of justice require that a new trial should be granted, in order that plaintiff may move to amend his complaint and be in a position to properly present his case for determination anew. CLARKE, P. J., LAUGHLIN, SMITH and GREENBAUM, JJ., concur. Determination appealed from and judgment and order of the City Court reversed and a new trial ordered, with costs in all courts to abide the event. App. Div. 29] First Department, April, 1921. JACOB HANAUER, Respondent, v. GEORGE P. SMITH, Appellant. First Department, April 1, 1921. Bills and notes accommodation paper action by transferee defense of usury between payee and transferee — evidence that notes were accommodation paper admissible estoppel. In an action on promissory notes in which the defense interposed is that the defendant gave the notes to a third person without consideration and solely as an accommodation and that the transfer of the notes to the plaintiff was usurious, it is error to refuse to admit testimony on the part of the defendant, expressly offered as laying a basis for the defense of usury, that the notes were made and delivered by the defendant to said third person without consideration and solely for the latter's accommodation. The defendant assumed the burden of first showing when the notes in question actually had an inception, which was when they were delivered for value, and he had the right to show as the first step in this proof that no consideration had been given for the making or delivery to said third person, which proof he proposed to follow by proof of the usurious transaction between the third person and the plaintiff. Defendant was not estopped from claiming the right to prove that the notes were accommodation notes and that they had no inception until they were transferred to plaintiff, for there is no proof that plaintiff relied upon certificates made by the defendant and was thereby misled to his detriment and was in fact ignorant of the actual nature of the transaction between the defendant and the third person. APPEAL by the defendant, George P. Smith, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of November, 1920, on the verdict of a jury for $8,329.20, and also from an order entered in said clerk's office on the 12th day of November, 1920, denying defendant's motion to set aside the verdict and for a new trial made upon the minutes. Henry M. Stevenson, for the appellant. I. Gainsburg [Joseph P. Segal of counsel], for the respondent. DOWLING, J.: This action was brought to recover on four promissory notes alleged to have been made by the defendant to the order First Department, April, 1921. [Vol. 196 of S. C. Sugarman and by him indorsed and delivered for value, before maturity, to plaintiff, which notes were not paid when due. The answer set up as to one of these notes that the defendant's signature thereon was a forgery; as to the other three notes the defendant pleaded that they were given by defendant to Sugarman without consideration and solely as an accommodation made for the benefit of Sugarman; as to all the notes the defendant pleaded the defense of usury as between Sugarman and plaintiff. The issue of whether the name of defendant was forged to the $4,000 note, set forth in the second cause of action, was found by the jury adversely to defendant's contention and no valid reason is suggested for the reversal of that finding of the jury. It is urged, however, that error was committed in the exclusion of certain evidence offered by the defendant upon the issue of usury. The defendant endeavored to elicit testimony tending to show that these three notes were made and delivered by him to Sugarman without consideration and solely for the latter's accommodation; this was the first step in the defendant's effort to prove the usurious transaction which he had set up as a defense. This testimony was expressly offered as laying the basis for such defense. The court, however, refused to receive this evidence. Its ruling to that effect was erroneous. In Kennedy v. Heyman (183 App. Div. 421) Mr. Justice SHEARN said: "The question presented is whether the plaintiff, who purchased an accommodation note from the accommodated party at a discount of about twelve per cent, can recover thereon against the maker, whose contention is that the note is void for usury. "There is no question whatever but that the note was purely for the accommodation of Traphagen who negotiated it to the plaintiff and that it was without any consideration. When it was delivered, Traphagen, the accommodated party, delivered to the maker a paper signed by him stating: 'Mr. I. J. Heyman has this date given me a note for $200 for three months from date for which he is not liable and which I agree to pay when said note falls due. This note was given to me for my accommodation.' Right here might be noticed a contention made by the plaintiff that defendant is estopped |