
    RINALDO v. HOUSMANN.
    N. Y. Common Pleas; Special Term,
    
      January, 1877.
    Specific Performance.
    It is enough if the vendor, at the time and place fixed for performance, has the incumbrancers present, ready to discharge the in-
    
      cumbrances held by them, upon performance by the purchaser. Actual discharge before and independent of performance is not necessary.
    
    Trial of action for specific performance.
    On January 26, 1876, the plaintiff entered into a contract with the defendant, for the sale of certain premises in the city of New York, at the price of $26,000, to be paid as follows : $2,000 upon the signing of the agreement, $6,000 by assuming a mortgage upon the premises, and $18,000 in cash, which was to be paid on the 15th of February, 1876, on which day the deed was to be delivered. There were mortgages on the premises amounting to $20,000, and on the day fixed for the. passing of the deed, the defendant attended at the place designated, with his money, and the plaintiff was ready with his deed, and had procured the attendance of the mortgagees, who were ready, upon the receipt of the amounts due them respectively, to surrender their mortgages and execute satisfaction-pieces thereof.
    The defendant having refused to accept the deed .and pay the purchase price, this action was commenced for a specific performance.
    The defense interposed is the existence of the mortgages.
    
      Albert Cardozo, and Jacobs & Sink, for plaintiff,
    —Cited Hinckley v. Smith, 51 N. Y. 21.
    
      Culver & Wright, for defendant,
    Cited Morange v. Morris, 3 Abb. Ct. App. Dec. 314.
    
      
       See also Delavan v. Duncan, 49 N. Y. 485; Freedman v. Dewees, 33 Super. Ct. (J. & S.) 450; Lenihan v. Hamann, 14 Abb. Pr. N. S. 274; Herbert v. Smith, 6 Lam. 493. As to right of retainer, see Heading v. Gray, 37 Super. Ct. (J. & S.) 79; Lounsbury v. Potter, Id. 57; Hale v. Hayes, 54 N. Y. 389.
    
   Van Brunt, J.

I am aware that the language of the court in the case of Morange v. Morris sustains the defendant’s position in this case: the court say that “it is the duty of the defendant [seller] to have caused them [the mortgages] to be discharged before the time arrived at which he had stipulated to convey.”

The laying down of so broad a principle was not necessary to a decision of that case.

The case of Hinckley v. Smith, 51 N. Y. 21, is a much later authority, and is in direct conflict upon this point with the case of Morange Morris. The case of Hinckley v. Smith lays down the rule that the seller must be in a position at the time he is to convey, and upon the receipt of the purchase price, to deliver just the title which he has agreed to convey,

In the case now at bar, the evidence shows that if the defendant had shown any inclination to take the title, there would have been delivered to him, simultaneously with the payment of the purchase price, satisfaction-pieces of the mortgages about which complaint is now made. I do not think that any purchaser can require more than that he shall receive when he parts with his money a deed conveying the premises to him, together with releases of all claims which he has not assumed.

I am of the opinion, therefore, that the plaintiff, having been in a position to have satisfaction-pieces of this mortgage delivered to the defendant simultaneously with the payment of his purchase money, has done all he was required to do, and is entitled to a decree for specific performance.

Judgment accordingly with costs.

There was no appeal.  