
    William Ziehen, Resp’t, v. David J. Smith, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 1, 1893.)
    
    Contract—Tender of Performance.
    No tender is necessary where performance is waived or rendered impossible by the party against whom damages are claimed.
    Appeal from a judgment entered upon a verdict, and from an order denying a motion for a new trial.
    
      Frank P. Demarest, for app’lt; Abram A. Demarest, for resp’fc
   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 Eockland 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. That 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 him 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 the 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.  