
    Jacob Barnett and Morris Barnett, Appellants, v. Matilda Sussman, Respondent.
    Second Department,
    January 25, 1907.
    Vendor and purchaser — conditional sale of lands — waiver of forfeiture — action for specific performance by vendee.
    Under an executory contract to purchase lands and pay therefor by installments, with a forfeiture to the vendor if installments'be not paid when due, the vendor by accepting payments overdue waives the forfeiture which can only be asserted by express notice that if the balance be not paid within a reasonable : time specified, the right to forfeiture will be exercised.
    When such vendee sues for specific performance and the vendor shows that she cannot perform owing to a conveyance made to third .parties, the plaintiff is’nevertheless entitled to equitable relief that the defendant convey, or refund the amount paid, or account for the proceeds of the second sale if made in bad faith toward the plaintiff.
    Appeal by the plaintiffs, Jacob Barnett and another, from a-judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 4tli day of October, 1905, upon the decision of the court rendered after a trial at the Queens County Special Term. ■
    The action was for specific performance of a contract to sell real estate.
    
      John H. Kemble [George W. Pearsall him on the brief], for the appellants.
    
      George W. Schoonmaker, for the respondent.
   Gaynor, J.:

The contract between the plaintiffs and the defendant was that the plaintiffs should pay the defendant $320 for four lots of land by paying $32 down and $20 a month thereafter. It was .made Julie 22nd, 1901. It contained a clause.that on default in any payment the seller might 30 days thereafter elect without notice that all the payments become forfeited, to her and belong to her as liquidated damages, and that thereupon the contract should terminate. .

The plaintiffs paid $209 in all. The'last payment was of $10 in-September, 1903, ,The. payments were not according to contract, but irregular as to time and amounts from the beginning,- tlie purchasers being all the time in arrears owing to illness and lack of work. The seller■ always accepted .the .payments, however, and thereby so far waived the forfeiture clause that .she could not revive' it, if at all, except, by notice to the purchasers that if they did not pay the balance due within a reasonable time specified such forfeiture would be then exercised (Harris v. Troup, 8 Paige, 423; Clythe v. La Fontain, 51 Barb. 186; Murray v. Harbor & Suburban B. & S. Assn., 91 App. Div. 397; Cook v. Wardens, etc. 67 N. Y. 594; Day v. Hunt, 112 id. 191; Toplitz v. Bauer, 161 id. 333)

;The. notice which the seller claims to have given — for "if is not. found by the trial court and is disputed that she gave any,, the court’s decision being based on. the purchasers’ defaults alone-^ was not of a forfeiture at all. To, make the forfeiture-she had to-put herself . in a position of strict fight. The. trial court should therefore have-given the plaintiffs' relief, . The defendant claimed -that she had sold, -the property to another for $950. after the plaintiffs’ last payment, and therefore could not specifically perform. Even so; the judgment should have been for some appropriate -equitable relief in lien, as that the defendant convey to the plaintiffs on payment of the balance- due on the contract or else refund to them the- amount they had . paid; or that stfflKteount to them for tlie second sale, at all events if it- were madej^^Mp faith toward the plaintiffs, and -the plaintiffs’ defaults are exculpe.

The-judgment should-be reversed and a-new trial-granted.

Hiesohberú, P. J„ Jenks,-Hooker and Miíler, JJ,, concurred.

Judgment reversed and new trial granted, costs- to abide the final-, .award of costs. ... ■  