
    SUPREME COURT.
    Gilbert T. Reede, appellant, agt. Charles G. Schneider and August Schneider, respondents.
    
      New York General Term,
    
      March, 1874.
    
      Specific penformance — agreement to sell real estate.
    
    Where the evidence to extend the time of performance of an agreement to sell and convey real estate is directly conflicting, the finding by the court below thereon will not be disturbed on appeal.
    Where the plaintiff is not in readiness to perforar an agreement to convey real estate on tire day specified in the contract, by reason of a failure to have released and discharged certain incumbrances on the premises which were required to be done by the contract, and no extension of the time of performance is agreed upon, he cannot insist upon a specific performance of the contract.
    
      Before Davis, P. J., Daniels and Lawrence, JJ.
    
    Appeal from a judgment rendered at special term in favor of the defendants.
   Lawrence, J.

The learned justice, before whom this cause was tried at special term, has found, as matter of fact, that, cn the 1st day of November, 1871 (the time specified in the contract for the delivery of the deeds), the plaintiff did not .perform the contract on his part, nor did he tender a performance. Also that, on the 1st of November, 1871, there were judgments against the plaintiff, in Westchester county, to the amount of $3,451.49, which said judgments were unsatisfied of record, and a lien on the farm which the plaintiff had contracted to convey to the defendant, Charles G. Schneider.

Also, it was agreed between the parties that William F. Shirley, who was the owner of the Van Tassell and Crasto and Lynch and Bell mortgages, was, on the day the contract should be actually performed, to satisfy said mortgages and the Ibbotson judgment of $800, and receive in the place thereof the mortgage of $6,000, to be executed in pursuance of the terms of the contract on the Westchester property; and that the Building Material Company judgment of $2,651 and the Bell judgment of $779.18 against the plaintiff were released to the defendant, Charles Gr. Schneider, as liens on said Westchester property, the said releases having been duly executed prior to November 1, 1871, and ready for delivery on that day. He also finds that the title to said Westchester property was, on the 1st day of November, 1871, in one Samuel P. Dubois, and that, on the 11th day of February, 1872, it became vested in Caroline C. Shirley. He refused to find that the time for performing the contract was extended by mutual consent of the parties.

We have looked into the evidence contained in the printed case and see no reason for reversing the conclusion reached by the justice on these points.

The evidence, as to the extension of the time of performance, was directly conflicting; and there is, therefore, no ground for interfering with the finding.

The plaintiff not having been in readiness to perform on the day specified in the contract, and there having been no extension by the defendant, it is difficult to see on what ground a specific performance of the contract can be claimed. It will be observed that while releases of the judgments of the Building Material Company and of Bell had been actually obtained and were ready for delivery to Schneider on the first of November, the mortgages of Van Tassell and Crasto and of Lynch and Bell, and also the Ibbotson judgment, remained subsisting and unsatisfied liens on the property on the first of November; and'that,asto these latter, it was agreed between the parties that Shirley, who owned them, was, on the day the contract should be performed, to satisfy them and receive in place thereof the mortgage of $6,000 on the Westchester property.

We cannot, under these circumstances, distinguish this ease from the recent case of Hinckley agt. Smith (51 N. Y., p. 21), decided by the commission of appeals. In that ease the plaintiff had contracted to sell certain premises to the defend-; ant, “free of incumbrances,” for $2,500, which sum the defendant agreed to pay; $500 when the deed was delivered, and to give her bond and mortgage for the balance. The premises were incumbered by mortgage to the amount of $3,000, and remained so incumbered at the time of the trial of the 'suit for specific performance.

The plaintiff tendered a deed at the time specified in the contract. The defendant had, prior to that time, written tha-t she could not make the payment as agreed, and that she declined to take the premises. It was proved by the plaintiff that he had verbally arranged with the holders of the mortgages that they should take the mortgage to be given by the defendant and release their mortgages.

The complaint having been dismissed, it was held on appeal that there was no error, and that a tender of a deed, without releases of mortgages, was not an offer to perform the contract ; and that the' notice by the defendant of her intention not to perform, did not relieve the plaintiff from the necessity of having the mortgages discharged before a specific performance could be adjudged.

The mortgages held by Shirley never were released to the defendant, nor in any way discharged; and without such release or discharge, the case just quoted clearly shows that the plaintiff could not insist on a specific performance. As to the various exceptions taken by the plaintiff to the findings of fact, it seems sufficient to say that- the first,"second and third findings are supported by evidence given upon the trial; that the fourth and fifth findings" are corrected by the sixth and seventh findings in the requests of the plaintiff, and that each and every of the refusals to find as requested are supported by some evidence given on the trial.

The evidence of the witness, Fluellen, in the view which we have taken of this case, even if improperly received, could not, in any way, prejudice the plaintiff, it being confined simply to the value of the Westchester property.

The judgment below is therefore affirmed, with costs to the respondents.

Davis, P. J., and Daniels, J., concurred.  