
    The Congregation Shaaer Hash Moin, Respondent, v. William Halladay, Appellant.
    Where a contract for the sale of lands contains restrictions respecting the use to which the premises are to he applied hy the vendee, the vendor has the right to insert in the deed tendered in performance of the contract suitable provisions either in the form of a condition or a covenant to preserve and effectuate these provisions of the contract. If he inserts them in the form of a covenant and the grantee is entitled to a change in the form, or if he has the right to elect that a condition be substituted for a covenant, it is his duty to make his election or to provide the modification required before he can rescind the contract and sue to recover back the purchase-money paid. A mere general objection and refusal to accept the deed tendered is insufficient. (Church, Oh. J., and Peckham, J., dissenting.)
    (Argued June 13, 1872;
    decided November 12, 1872.)
    Appeal from a judgment of the General Term of the Superior Court of New York, affirming a judgment in favor of plaintiff, rendered on the report of a referee.
    This action was brought to recover $1,000 paid by plaintiffs to defendant, on the execution of a contract, by which the defendant agreed to sell to plaintiff a lot of land on the corner of Fourteenth street and Second avenue. The residue of the purchase-money was to be paid on the 1st day of May, 1864, when the deed was to be delivered. By the terms of the contract the defendant was to sell the land to plaintiff, a Jewish congregation, “to be used for a Jewish synagogue; the building to be erected to recede” eight feet from the line of the lot on Second avenue.”
    At the time of performance defendant tendered a deed containing this covenant: “And the said parties of the second part, for themselves and their successors, -covenant and agree with the said parties of the first part, their heirs and assigns, that any building which may be erected upon said premises shall be set back eight feet from the line of Second avenue, and that said premises shall be occupied for a Jewish synagogue.”
    This plaintiff refused to accept without specifying any objection or proposing any modification. Held (Church, Ch. J., and Peckham, J., dissenting), that the deed tendered was a substantial offer of performance, and that defendant was not bound to tender any different one unless plaintiff pointed out some specific valid objection, and offered to accept a deed with the clause in such form as it could show would be more appropriate, and until defendant was thus put in default the action could not be maintained.
    
      Amasa J. ParTcer for the appellant.
    
      Samuel Hand for the respondent.
   Rapallo, J.,

read" opinion for reversal and new trial'

All concur except Church:, Oh. J., and Peckham, J., dissenting.

Judgment reversed and new trial granted.  