
    Wyllys E. Pettit and Bert S. Pettit, as Executors, etc., of Lina S. Pettit, Deceased, Appellants, v. Brooklyn Development Company, Respondent.
    Second Department,
    September 10, 1912.
    Vendor and purchaser — contract construed — conveyance to vendee’s heirs without payment of balance of purchase price.
    Where a vendor of land to be paid for by monthly installments agreed • that the conveyance should be made to the purchaser’s heirs or representatives without further payment in case of her death before payment of the last installment, upon condition “That the payments on said lot shall not at any time have been more than thirty days in arrears,” the fact that the purchaser defaulted in payments for more than thirty days prevented her heirs from taking the property upon her death without further payment, although the vendor had accepted the delayed payments.
    Appeal by the plaintiffs, Wyllys E. Pettit and another, as executors, etc., from a judgment of - the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 22d day of March, 1912, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits.
    
      William King Hall [Carroll Sprigg with him on the brief], for the appellants.
    
      Edward M. Grout [James E. McKinney and Walter T. Lindsay with him on the brief], for the respondent.
   Thomas, J.:

The defendant and one Pettit agreed that the latter would pay presently and by monthly installments named sums until the whole purchase price of land was paid, and that the conveyance should be made to the vendee’s heirs or representatives without further payment in case of her death before the whole sum should have been paid. But such conveyance upon her death was conditioned among other things upon this: “That the payments on said lot shall not at any time have been more than thirty days in arrears.” On two occasions payments were in arrears for more than thirty days, and the default as regards the death provision was not waived unless by acceptance of the delayed payments. The contract made default in payment of thirty days a ground of forfeiture of the whole contract at the vendor’s option, and the abatement of the price at death enforcible only on the condition of performance of things specified with precision. The contract in its entirety was not forfeitable for default unless the vendor did something equivalent to a re-entry, and acceptance of the belated installment was a waiver of the failure to make this payment. But the right to save the unpaid balance at death was earned only by the performance of the conditions that initiated and con-tinned the right in operation. In the one case the vendor stipulated to exercise an option to forfeit; in the other conveyance notwithstanding the unpaid balance rested upon a condition precedent to be performed by the vendee, and no affirmative act or option of the vendor came into play. The land is deemed worth the purchase price, and an inducement to pay it was the ability to have it by prompt payment during life, whether the aggregate sum. paid was all or part of. that promised. The vendor was not insuring payment on a life, but providing a method which, if observed, would enable the vendee dying to transmit the land with the purchase price paid. The failure to earn this right did not end the contract. That survived all forgiven defaults; but the right to the lesser price had its own several conditions, and did not outlive non-performance. The contract had this alternative feature, that the price to the vendee living was $1,040 if she paid according to the stipulation, or default thereof was not declared, but it was whatever she had paid, if she had performed each one of several named conditions. As already stated, the contract outlived a waived default, but the right to limit payments to the vendee’s life was 'in abrogation of further performance by vendee, and the money to be gained by it could only be earned by doing what the parties agreed should be done for that purpose. The plaintiff’s contention is that the lesser price obtains upon death, inasmuch as the vendor ventured to accept payments after default.. This • requires the defendant to forfeit on the first default or submit to convey at the vendee’s death. But that was not the agreement, for the parties stipulated- that the vendor might, on default at its option forfeit the contract. -It did not undertake that the -acceptance of the money would keep the conditional stipulation alive. .. That was separately treated and required performance by the- vendee. .

The judgment should be affirmed, with costs.

Hirschberg, Burr, Carr and Rich, JJ., concurred.

Judgment affirmed, with , costs.  