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SECOND DEPARTMENT, MARCH TERM, 1897. [Vol. 15. clearly that the plaintiff's claim was paid. The defendant should, therefore, be charged with the sum of $569, which he received when he sold out the remaining store.

There is another class of checks with which the defendant has been charged. These checks are for small sums. They number this ty-three, and amount in the aggregate to the sum of $1,347.87. The defendant concedes that these were applied for his personal uses, but he contends that he took their amounts out of his weekly salary of thirty dollars, which he was entitled to draw. From the smallness of the amounts of these checks, which, as a rule, are within the weekly salary of the defendant, I am not prepared to say that his story is unreasonable, but, at the same time, I do not think we are justified in disturbing the finding of the referee as to them.

As to the remaining classes of checks, with the amount of which the defendant has been charged, we have only to say that a careful examination of the evidence convinces us that the referee's findings as to them, despite the criticisins of appellant's counsel, were correct.

This determination of the case has not been wholly satisfactory to us. We appreciate that it may well be that the plaintiff has suffered through the defendant even a greater loss than that allowed him by the original judgment, which we have reduced. It also may be that the defendant has not been guilty of dishonestly appropriating any of his father's moneys, or is not liable for so large a sum as he has been charged with. Whatever uncertainty there is in the result at which we have arrived is occasioned by the character of the business methods of the parties. Those methods may not be the fault of either of the parties, but, at least, they are their misfortune, and the result of that misfortune they will have to bear.

The judgment appealed from should be reversed and a new trial granted before a new referee, costs to abide the event, unless plaintiff deducts from his recovery the sum of $10,803.45, in which case the judgment appealed from is further modified by excluding from the specific lien awarded to plaintiff, the Lee avenue house and the Ridgewood house, which seem to have been acquired by the defendant prior to the transactions which are the subject of this litigation, and as modified is affirmed, without costs to either party.

All concurred, except BARTLETT, J., not sitting.

App. Div.] SECOND DEPARTMENT, MARCH TERM, 1897.

Judgment reversed and new trial granted before a new referee to be appointed at Special Term, costs to abide the event, unless within twenty days plaintiff stipulates to deduct from his recovery the sum of $10,803.43, in which case the judgment appealed from is further modified by excluding from the specific lien awarded to plaintiff, the Lee avenne house and the Ridgewood house, and as modified is affirmed, without costs to either party.

HENRY C. MINER, Plaintiff, v. HENRY G. Hilton, Defendant.

Contract to sell real estate - inability of the vendor to perform -- action to recover

a payment thereon when the deed must be executed by the vendor and not by another title by adverse posscssion.

In an action to recover money paid on account on a contract for the sale of No.

37 West Twenty-eighth street in the city of New York, by the terms of which the defendant agreed to "execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered,” to the plaintiff, a proper deed, containing a general warranty and the usual full covenants for the conveying and assuring to the plaintiff the fee simple of the premises, free from incumbrances, it appeared that, at the time for the completion of the sale, the title to the land was not in the defendant, but in one Hughes, who offered to convey it to the plaintiff, but the plaintiff objected that he was entitled to a deed from the defendant and also on the ground that the building No. 37 West Twenty-eighth street encroached two and three-quarters inches on land not

covered by the deed, which appeared to be the fact. The court declined to submit any question to the jury, and directed a verdict

for the plaintiff for the amount claimed. Held, that as the present action was brought, not in affirmance of the contract,

but rather in rescission thereof, it was not incumbent upon the plaintiff to prove his readiness to perform the contract on his part, notwithstanding the

fact that he had alleged such readiness in his complaint; That inasmuch as the defendant was unable to perform, no offer of payment to

the defendant of the purchase money was requisite to put him in default. Semble, that as the stipulations in the contract were concurrent and dependent,

neither party would be in a position to require performance from the other,

unless he was then ready and willing to perform; Semble, that if readiness to perform had been an essential element of the plain

tiff's cause of action, inasmuch as the only testimony to support it was given by the plaintiff himself, and he was an interested party, the question should have been submitted to the jury. Qucere, whether, under the agreement to “ execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered," a deed, the plaintiff was SECOND DEPARTMENT, MARCH TERM, 1897. (Vol. 15. not entitled to a deed containing covenants of warranty made by the

defendant. Where the record title to premises agreed to be conveyed under a contract for

the conveyance of real estate is defective, but the vendor claims that the defect has been cured by adverse possession, the burden is on him to establish

that fact. Mere possession for twenty years is not sufficient to establish title by adverse

possession, as the possession of land is always presumed to be in subordination to the legal title.

Motion by the defendant, Henry G. Hilton, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the plaintiff rendered by direction of the court after a trial at the New York Trial Term on the 13th day of March, 1896.

This motion was transferred from the first department to the second department.

David May and A. H. IIummel, for the plaintiff.

H. M. Whitehead, for the defendant.

BRADLEY, J.:

The action was brought to recover damages for the alleged default of the defendant in performance by him of a contract made between the parties of date February 10, 1892, whereby the defendant agreed to sell to the plaintiff a lot of land known as No. 37 West Twenty-eighth street in the city of New York for $80,000, of which $5,000 was then paid, and on receiving payment of the residue, as provided, the defendant agreed to “execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered," to the plaintiff a proper deed containing a general warranty and the usual full covenants for the conveying and assuring to the plaintiff the fee simple of the said premises free from incumbrances, the deed to be delivered, on April 30, 1892, at the place designated in the contract.

At the time the contract was made the defendant did not have the legal title to the premises described in the deed hereinafter mentioned, but had as vendee a contract made with one Roher as vendor, which last-mentioned contract the defendant assigned to John M. Hughes by an instrument executed in London, England, April App. Div.] SECOND DEPARTMENT, MARCH TERM, 1897. 22, 1892. Afterwards, pursuant to such contract, Roher conveyed to Hughes a lot of land on the northerly side of Twenty-eighth street in the city of New York, described by metes and bounds and designations, being known as No. 37 on West Twenty-eighth street.

The plaintiff was at the time and place designated in the contract for its performance. The defendant was not; but Hughes was there. The plaintiff had caused a series of objections to be written out, which indicated somewhat a purpose not to accept the deed of conveyance. The objections requiring attention are those that the deed is not one containing covenants of warranty by the defendant Hilton, and that the person executing the deed had not 6 and never had title to the whole of the property No. 37 West Twenty-eighth street.” The evidence on the part of the plaintiff is to the effect that the objection was then made to Mr. Hughes that the building encroached two and three-quarter inches upon land not covered by the deed, and that the survey which had been made showing the encroachment was exhibited to him. Also the objection that the plaintiff was entitled to a deed with covenants of warranty from the defendant, who was the vendor in the contract. These objections so made preceded the tender, which was shortly after made in behalf of Hughes, of the deed made by him describing the lot by metes and bounds as it was described in the deed before mentioned, made by Roher to him. Hughes demanded performance of the plaintiff, who rejected the deed on the grounds specified and written out on the paper before mentioned, which was produced.

In this action, afterwards commenced, the plaintiff alleges the making of the contract, the payment by him of $5,000, readiness on his part to perform, and that the defendant in violation of the contract “ failed and refused to sell or convey to the plaintiff the said lot or parcel of land and perform the said contract on his part," and refused to repay the $5,000. The purpose of the action was to recover the money so paid by the plaintiff. At the close of the evidence the motion made for dismissal of the complaint was properly denied, and the court, having declined to submit any question to the jury, directed a verdict for the plaintiff for $5,000 and interest. Upon the exception then taken arises the main ques

APP. Div.-Vol. XV. 8

SECOND DEPARTMENT, MARCH TERM, 1897. [Vol. 15. tion for consideration. The stipulations of the parties in the contract, for performance on the day designated, were concurrent and dependent, and neither would be in a situation to require performance from the other unless he was then ready and willing to perform on his part. (Smith v. Smith, 83 Iun, 381.) If this was an essential fact to the maintenance of the present action, then it should have been submitted to the jury because the evidence of readiness of the plaintiff to perform the contract at that time on his part was only that given by him, and his relation to the action is such that the credibility of his testimony was a question for the jury. (Canajoharie N. Bank v. Diefendorf, 123 N. Y. 191.)

The cases cited by the learned counsel for the defendant in support of the proposition that it was necessary for the plaintiff to prove readiness on his part to perform the contract, and that if he depended upon an excuse for non-performance on his part it was necessary to allege the facts constituting such excuse, were those in which the actions proceeded in affirmance of the contracts and to require performance. Such were Clift v. Rodger (25 Hun, 39); Greenblatt v. llermann (14 N. Y. 13).

The present action was brought upon the theory that the contract ceased to be operative or available for performance by reason of a breach on the part of the defendant, and the plaintiff seeks to recover the money he has paid upon the contract. It is true that the plaintiff alleged readiness and willingness on his part up to the time of the alleged breach. Was this necessary to the support of his action founded upon what in practical effect was a rescission to recover the money for breach of the contract on the part of the defendant? It would have been good pleading to have alleged the specific fact which constituted the breach or failure to perform upon which the plaintiff relied. IIc, of course, must support his alleged breach by proof, and if his readiness to perform was necessary to enable him to assert such breach, the proof of that fact was essential to recovery by the plaintiff. (Lawrence v. Taylor, 5 Hill, 107, 115; Bigler v. Morgan, 77 N. Y. 312, 318; Smith v. Rogers, 42 Ilun, 110; Morange v. Morris, 3 Keyes, 48.)

The evidence did establish the fact that the deed made by Roher to Hughes, and that executed by Hughes and tendered to the plaintiff, did not cover all the land upon which stood the house or

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