
    Henry Helmke, Resp’t, v. The New Jersey & New York Railroad Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 12, 1892.)
    
    Specific performance—Mutual covenants.
    Plaintiff contracted to sell certain land to defendant for a nominal sum for the use of its road, in consideration of its agreement to build and maintain a lawful fence on each side of its road. The fences were not built nor the deed given. In an action of ejectment, defendant asked for specific performance, which was decreed upon defendant fencing its road and paying damages for its failure to do so. Held, no error; that the engagements of the parties were mutual, and to be simultaneously performed.
    Appeal from judgment decreeing specific performance of a contract for the sale of land upon defendant paying $250. damages and erecting fences on both sides of the land in question.
    
      De Forest & Weeks (F. L. Hall, of counsel), for app’lt; W. J. Groo, for resp’t.
   Barnard, P. J.

The justice of the decision appealed from cannot be assailed. The Hackensack & New York Extension Railroad Company, a New Jersey corporation, was authorized to extend its road in this state. This railroad company built its road over the plaintiff’s lands in 1871, and in 1872 commenced running the road. The Hackensack Company had, in 1870, mortgaged its road to John S. Fox and others. In 1873 the Hackensack Company consolidated with another company and became the defendant company, and in 1880 acquired the mortgage title. The .defendant’s lands were taken under an agreement to sell for a nominal sum, and on agreement that the railroad company would build and maintain a lawful fence on each side of the railroad. The plaintiff owned on each side of the railroad company’s tracks. The ■ original company and its successors has had the land since about November, 1871. No fence has been built, no deed has been given. The use of the plaintiff’s land has been very much impaired by the lack of the fences. The plaintiff brings an action in ejectment. The defendant asks a specific performance of the contract. The court granted a decision for a specific performance of the contract by the execution and delivery of a deed, and upon the payment of $250 to the plaintiff, and forthwith fencing the property, with costs to plaintiff. The proof showed a much greater loss to plaintiff by the absence of fences than was allowed by the contract By the true reading of the contract, the engagements of the parties were mutual, and to be simultaneously performed, by building the fences, otherwise the railroad company would get the land without payment of the consideration. The whole agreement is to be taken and read together in view of the subject of it, and in view of what was to be performed under it. The giving of a deed was no more a condition subsequent than is the building of the fence. The question is of no importance, however. The defendant asks for a specific performance, and it is granted upon the performance of the contract in respect to the fence, and upon payment of damages for its failure to do so heretofore. None of the evidence shows the plaintiff’s injury to be so small as the sum allowed by the court.

The judgment should be affirmed, with costs. /

Dykmant, J., concurs; Pratt, J., not sitting.  