
    Frederick Hoch, App’lt, v. James R. Cocks, Resp't.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 14, 1894.)
    
    Specific performance—When denied.
    Specific performance will be denied where it will be inequitable and unjust.
    Appeal from a judgment dismissing the complaint on its merits.
    
      George Finch, for app’lt; John P. Kirby, for resp’t.
   Pratt, J.

This is an appeal from a judgment entered on a report of a referee dismissing a complaint upon the merits. The relief prayed for was a specific performance of an alleged contract for the sale of real estate. It is conceded by both parties that the defendant cannot give title, as he is not the owner in fee, but only oyvns an undivided one-half interest in the property. Whether specific performance shall be decreed is largely a matter of discretion with the court, and the rule is to deny it where such a course will be inequitable and unjust. In this case it is admitted that the land is worth $2,500, and the claim of the plaintiff is to have it decreed to him for only $500. I have thus far assumed that there was a valid legal contract proved for the sale, as claimed by the plaintiff. The referee, however, has found upon conflicting testimony that no such contract was entered into, and we think this conclusion is supported by the evidence. The vital point is that the minds of the parties never met upon quantity and description of the land in questi in. This is evident from the price fixed upon, and the testimony of the parties. The land was unfenced. Ho survey was made, and no fixed boundary agreed upon. The decree below allowed the plaintiff to recover the money he had paid, which was all he could justly do under the facts disclosed. Margraf v. Muir, 57 N. Y. 155. Judgment affirmed, with costs.

All concur.  