
    HOCH v. COCKS.
    (Supreme Court, General Term, Second Department.
    May 14, 1894.)
    Specific Performance—Discretion of Trial Court.
    Specific performance is a matter of discretion with the court, and will not be granted where it would be inequitable or unjust.
    Appeal from judgment on report of referee.
    Action by Frederick Hock against James E. Cocks for specific performance. The complaint was dismissed on the merits, and plaintiff appeals. Affirmed.
    Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.
    George Finck, for appellant.
    John P. Kirby, for respondent.
   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 owns 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 question. This is evident from the price fixed upon, and the testimony of the parties. The land was unfenced. No' 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.  