
    Josie E. McCann, complainant-respondent, v. Mary Acierno, defendant-appellant, and Francis J. Roche and Bridget M. Roche, defendants.
    [Submitted October term, 1934.
    Decided January 10th, 1935.]
    
      
      Mr. William, M. McDonnell, for the defendant-appellant.
    
      Mr. Max Schwartz, for the complainant-respondent.
   The opinion of the court was delivered by

Bodine, J.

The purchaser under a contract of sale of land appeals from a decree directing specific performance. The lands in question are situate on South Seventh street, Newark. They are connected with a sewer in South Sixth street. The sewer pipes from an adjoining property cross the lands to be conveyed. Complainant offered to procure a release of whatever easement of drainage existed. The defendant refused timely and suitable tender of title with a release of easement, unless the expense of connecting the premises with the sewer in Seventh street was paid by the vendor. The learned vice-chancellor quite properly ruled that the refusal to accept the tender was improper and directed specific performance.

The tender of the deed and the release of the easement of drainage was made before any attempt was made to make time of the essence of the contract. The purchaser of property under the contract in suit had no right to require drainage into a sewer in one street rather than into another. The complainant, as before noted, had agreed to procure a release of the easement of drainage across the land in question. The final decree should have been conditioned upon the procurement of such a release. To this extent the decree appealed from will be modified.

For modification — The Chiee-Justice, Parker, Lloyd, Case, Bodine, Donges, Heher, Perskie, Yak Buskirk, Kays, Heteield, Dear, Wells, JJ. 13.  