
    (73 Hun, 571.)
    ZIEHEN v. SMITH et al.
    (Supreme Court, General Term, Second Department.
    December 1, 1893.)
    Breach op Contract—Tender op Performance—Fraud.
    Plaintiff paid $500 on the execution of a contract to convey land. The contract represented that there was only a mortgage for $1,000 on the land. A mortgage for $1,500 additional was being foreclosed when the $500 was paid, and the land was subsequently sold thereunder. No conveyance was ever made to plaintiff, nor was the $500 repaid. Held, that tender of performance by plaintiff was not necessary to an action for breach of contract, as it was impossible for defendant to perform; and that plaintiff was entitled to recover the $500 on proof of the falsehood as-to the $1,500 mortgage.
    Appeal from Kockland county court.
    Action by William Ziehen against David J. Smith and John H. Smith for breach of contract. The complaint was dismissed on the trial as to John H. Smith. From a judgment entered on a verdict for plaintiff, and from an order denying a new trial, (24 N. Y. Supp. 922,) defendant David J. Smith appeals.
    Affirmed.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    Snider & Hopper, for appellant.
    Abram A. Demarest, for respondent.
   BARNARD, P. J.

On the 10th of August, 1892, David J. Smith made an agreement with the plaintiff to convey certain premises to-him in Rockland county for $3,500. The conveyance was to be subject to a mortgage of $1,000. Five hundred dollars was to be paid when the contract was executed, which was done. The defendant John H. Smith signed the contract for David J. Smith, the owner. The agreement made a representation that there was only a mortgage of $1,000 on the property, while in fact, to. the. knowledge of both defendants, there was a mortgage of $1,500 additional, which swept the title away from the defendant owner. The plaintiff has obtained no conveyance, and has had no repayment to Mm of the $500. The $1,500 mortgage was in course of foreclosure when the $500' was paid, and the property was sold in December thereafter. The contract was proven on the trial, the payment of the $500, the foreclosure and sale under it, and that John H. Smith was an owner of the property, and sold it to David J. Smith in May, 1892, John H. Smith gave the' $1,500 mortgage while he had title. The objection made to the plaintiff’s recovery is that no offer was made to the Smiths, one or both, to perform. Performance, or an offer to perform, is necessary in cases for damages for breaches of contract;, but it is a universal exception that no tender is necessary where .the performance is waived, or performance was impossible by the party against whom damages are claimed. The fraud was made out by the proof of the falsehood as to the second mortgage. The right to recover thé payment back was instantaneous upon proof of the fact which made out the fraud. The judgment and order denying: new trial should be affirmed, with costs. All concur.  