
    KRASNOW v. TOPP et al.
    (128 App. Div. 156.)
    (Supreme Court, Appellate Division, Second Department.
    October 16, 1908.)
    1. Specific Performance—Contracts Enforceable—Possibility of Performance. .
    The fact that a person contracting to convey land does not at the time have title to all of it does not render specific performance of the contract impossible, so as to deprive equity of jurisdiction, where it does not appear that he might not acquire title to the whole of it.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 44, Specific Performance, §§ 257-279.]
    2. Same—Proceedings—Relief Awarded—Money Judgment.
    In a suit to specifically enforce a contract to convey land, where it appeared at the close of the trial that defendant could not specifically perform, a money judgment prayed for was properly rendered,
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 44, Specific Performance, §§ 412-419.]
    Appeal from Special Term, Kings County.
    Action by Martha Krasnow against Harry Topp and others on a contract to convey land. From a money judgment for plaintiff, defendants appeal.
    Affirmed.
    Suit by the purchaser for specific performance of a contract to convey real property. The contract was to convey a plot 40 feet front on' a city street, with houses on it. The complaint alleges that the defendant was unable to convey because the houses overlapped and encroached four inches on the adjoining land. It prayed for specific performance, and as an alternative for a money judgment for the amount paid on the contract and the expense of examining the title.
    Argued before JENKS, HOOKER, GAYNOR, RICH, and MILLER, JJ. ■
    
    A. Wolodarsky, for appellants.
    Lehman & Telsey, for respondent.
   GAYNOR, J.

Before any witness was sworn the defendant moved that the case be sent to the jury calendar for a. jury trial. The claim was that the complaint itself showed that the defendant could not perform, and that therefore the case was not of equitable jurisdiction, as specific performance will not be decreed where it is impossible. But it did not appear that it was impossible. The defendant might, for aught that appeared, put himself in a position to perform by acquiring title to the four-inch strip encroached upon. The case is no different than if the defendant had not owned any of the land he contracted to convey. The motion to send the case to the jury calendar was therefore properly denied; and as at the close it appeared that the defendant could not perform, the court had the right to give the money judgment prayed for.

The judgment should be affirmed.

Judgment affirmed, with costs. All concur.  