
    The Green-Shrier Company, Respondent, v. State Realty and Mortgage Company, Appellant.
    Second Department,
    December 30, 1908.
    Contract — agreement to repay purchase money by vendor tendering good title — consideration.
    Action to recover earnest money paid on a contract for the sale of lands. The vendor tendered a good title on the day set, but at the request of the vendee granted various adjournments and agreed that if the title should not be insured by a title insurance company, the vendor would repay the earnest money with the expense of examining title.
    
      Held, that the agreement was not enforcible against the vendor, being without consideration.
    Hooker and Rich, JJ., dissented.
    Appeal by the defendant, the State Realty and Mortgage Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day of June, 1908, upon the decision of the court rendered after a trial at the Kings County Trial Term, a jury having been waived.
    The agreement on which judgment was givén was signed by both plaintiff and defendant, and is as follows:
    “ The time for closing title to the premises in the within contract is hereby adjourned to Oct. 24th, 1907, at 1 o’clock p. m., at the office of State Realty & Mortgage Company, 11 Pine street, Mew York City, closing to be as of Oct. 24tli, 1907. In the event, however, title to said premises will not be insured by the Title Insurance Company of Mew York, then in that event the deposit paid hereon together with interest thereon from date of payment of same at the rate of 6% to Oct. 24th, 1907, be paid the vendee, together with any costs of the Title Insurance Company of Mew York for the examination of title and making survey.”
    
      David B. Ogden [Philip S. Dean with him on the brief], for the appellant.
    
      Charles C. Suffern, for the respondent.
   Gaynor, J.:

The action is to recover of the vendor the amount paid by the vendee on a contract of purchase of real estate, and the expense of examining the title, and the plaintiff has judgment. The complaint alleges that the defendant was unable to convey a good title, that the deed day was several times adjourned to enable it to perfect its title, that the last time it was so adjourned under an agreement between the parties for a valuable consideration that if the Title Insurance Company of Mew York should not insure the title, the amount paid on the contract and the plaintiff’s expense of examination should be paid by the defendant.

The trial court found and adjudged that the title was all the while good, but gave judgment for the plaintiff on the said agreement, which was in writing. There was no consideration to the defendant for the agreement. The adjournment was no consideration to the defendant, but the contrary. It tendered a good title and needed no adjournments. They were caused by the plaintiff and taken by mutual consent only to enable the plaintiff to satisfy itself further about the title, If the said agreement were mutual, viz., if the defendant was released from the obligation to convey, as well as the plaintiff from the obligation to take, if the title company would not insure, there would be reciprocal considerations; but it is not. It left the plaintiff free to enforce the contract of sale, if it chose to do so, even if the title company should refuse to insure. That there was no other consideration is conceded.

The judgment should be reversed.

Jenks and Miller, JJ., concurred; Hooker and Rich, JJ., dissented.

Judgment reversed and new trial granted, costs to abide the event.  