
    Samuel Hugel, Plaintiff, v. Nathan Habel, Defendant.
    (Supreme Court, New York Special Term,
    November, 1907.)
    Vendor and purchaser — Performance of the contract — Vendor prepared or ready to discharge incumbrances.
    Specific performance — Actions — Specific performance in favor of defendant.
    In an action by the assignee of the vendee of real property to impress a lien thereon for the amount paid on account of the purchase price when the contract was made, where it appears that plaintiff objected to taking title because one of the mortgages he was to assume was payable in installments contrary to the provisions of the contract, and where before the commencement of the action defendant obtained a consent from the holder of the mortgage to accept payment which enabled him to carry out the contract according to its terms which he offered to do and interposed an answer setting up the facts and praying specific performance, a judgment in his favor decreeing specific performance will be granted.
    Action for specific performance.
    Shapiro & Shapiro, for plaintiff.
    I. V. Schavrian (Geo. Hahn, of counsel), for defendant.
   Newburger, J.

The defendant sold to oné Harris, the plaintiff’s assignor, certain premises known as No. 33 West One Hundred and Seventeenth street for the sum of $28,500. The contract provided that the purchaser should pay $500 on the signing of the contract; $18,000, by taking the premises subject to a first mortgage for that amount; $2,500, by taking said premises subject to a second mortgage for that amount, to become due in about two- and one-half years, $3,000, by executing a mortgage for that amount, the balance to be paid in cash or by certified check. The contract further provided that the title was to be closed on the 2d day of July, 1906. This date was subsequently changed to July fifth by consent of the parties. On that day the plaintiff objected to taking title on the ground that the search disclosed the fact that the second mortgage was payable in installments, and that the contract called for a straight mortgage. There was some discussion between the parties, the defendant stating that he had.informed plaintiff’s assignor that the mortgage was payable in installments. The defendant then asked for a reasonable adjournment in order to arrange the payment of the mortgage to the satisfaction of all parties. He asked for three weeks, but plaintiff only consented to a postponement until July ninth. It appears that the defendant procured the consent of the mortgagee to accept payment of the principal of the mortgage. On the adjourned day, July ninth, the attorney for the defendant informed the plaintiff’s, attorney that he had procured the mortgagee’s consent to accept payment of the mortgage, but that it would require a little further time, and asked for a further adjournment, which was refused. The defendant’s attorney then offered to return the deposit and pay a reasonable fee for services, but the defendant refused to pay the sum asked by plaintiff’s attorney on the ground that it was unreasonable. ¡Negotiations for a settlement continued for several weeks, and finally, on September sixth, defendant’s attorney wrote a letter to plaintiff’s attorney asking him if his client would take title not later than September tenth in accordance with the terms of the contract. To this letter plaintiff’s attorney did not reply. Subsequently this action was commenced to impress a lien upon the premises referred to. The defendant in his answer sets up a counterclaim alleging his ability and readiness to complete the contract and plaintiff’s refusal. In Baumeister v. Demuth, 84 App. Div. 399, it was held: “ It is the practice in equity to require specific performance if the title is good at the time of the trial, even though defective at the time fixed for the performance of the contract, where the vendor has, upon discovering defects, exercised diligence in remedying the same, if there has been no change in the circumstances or position of the parties by which performance will become inequitable or will be to the substantial prejudice of either party.” In this case the objection to the title could easily have been overcome. The mortgagee was willing to accept payment of the principal due him, and it is apparent that if the plaintiff and his attorney instead of insisting upon their strict legal rights had displayed an intention to avoid technicalities, thg title could have been closed, as by the terms of the contract the defendant was entitled to receive from the plaintiff a sum in cash in excess of the amount of the mortgage and arrearage of interest. The contention of the plaintiff that his position has been changed in such a manner that specific performance will be excused is not borne out by the evidence. The plaintiff’s testimony is vague and uncertain, and his account of loans to his brother and his stock speculations fails to convince me that his position has been so changed as to warrant a denial of defendant’s prayer for specific performance of the contract. Judgment for the defendant for the specific performance of the contract. Submit findings.

Judgment for defendant.  