
    William Flandrau, complainant and appellant, v. Otto H. Albanesius et al., defendants and respondents.
    [Filed June 23d, 1902.]
    
      Messrs. McFwan & McFwan, for the appellant.
    
      Messrs. Weller & Li'chtenstein, for the respondents.
   Per Curiam.

The decree appealed from is affirmed, for the following reasons, stated by Vice-Chancellor Stevens, at the close of the hearing, on directing a dismissal of the bill of complaint:

There is no evidence whatever that Dr. Albanesius has abrogated the contract in any way. The evidence shows very plainly that it was the desire of Dr. Albanesius to fulfill the contract. There seems to have been some difficulty with respect to ascertaining what was due—the precise amount that was due. That is the evidence, and it also appears that within a few days after-wards Mrs. Peters moved to New York City, and Mr. Albanesius did not know where to go in order to make a tender of the money. Finally, he discovered her new place of residence, and tendered the money. The difficulty lay in the fact of an unsettled account which had not been settled before. It seems to me that if ever there-was a case in which diligence was shown—an earnest desire on the part of a purchaser to live up to his contract—I cannot conceive of any case in which greater diligence has ever been exhibited. It does not appear that Mrs. Peters made any tender of the deed, and because of this failure I think it is perfectly plain that Dr. Albanesius is entitled to the surplus. Time is-not of the essence of this agreement. I therefore dismiss the bill.

For affirmance—The Chiee-Justice, Van S yokel, Dixon, Garrison, Collins, Fort, Garretson, Hendrickson, Pitney, Bogert, Krueger, Adams, Vredenburgh, Voorhees, Vroom —15.

For reversal—None.  