
    John P. Foland, as Trustee for Mary A. Brinckerhoff, Respondent, v. Italian Savings Bank of the City of New York, Appellant.
    Second Department,
    January 10, 1908.
    . Real property — vendor and purchaser — lease to third parties pending adjournment — acts not terminating adjournment.
    When, because of objections to incumbrances on lands made by the vendee, the parties by mutual agreement adjourn the day of passing title, and the vendor pending the adjournment leases the premises for five years to other parties, he has put it out of his power to convey an unincumbered title, and the vendee is entitled to recover the earnest money paid with expenses of examining the title.
    Pending such adjournment the vendor notified the vendee that unless he was prepared,to take title the amount paid woiild'be considered forfeited and the . premises exposed for sale. The vendee replied that thej delay was caused by the inability of title companies to complete the search, which reply the vendor acknowledged, advising the vendee that he must make an additional payment, otherwise the property would be offered for sale. . .
    
      Held, that no definite time and place for closing title or for the payment of an additional sum had been set, so as to make time the essence of the contract and put the vendee in. default.
    
      Appeal by the defendant, the Italian Savings Bank of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 15th day of March, 190Í, upon the decision of the court rendered after a trial at the Queens County Special Term.
    
      John Elton Wayland, for the appellant.
    
      Joseph Sapinsky, for the respondent.
   Hooker, J.:

The action is to recover from the contract vendor of certain real. estate the amount paid upon the. purchase at the time the contract was made, together with the expense of examining the title. The plaintiff has had a verdict, and the defendant appeals. The plaintiff contends that the title was objectionable on account of a restriction to which the land was subject by reason of the provisions of early deeds, but the defendant insists that the failure to perform was not due to a claim of such restrictions because the vendee never raised the question. A question of fact was presented as to whether this objection had been urged against the. title, and the court has found with the plaintiff upon evidence which we think was sufficient. The court has also found that the closing of the title was adjourned by mutual consent and by various agreements until the 3'lst day of October, 1905, and that on or about the 28th day of October, 1905, the defendant leased the premises for a term of five years by a lease in writing to persons .other than the plaintiff, which persons entered into possession of the premises, in question and were in possession thereof on the 31st of October, 1905, and the defendant did not and could not procure a surrender of the lease and possession of the premises. Some few months thereafter the defendant sold the premises to a third'party who is in no way connected with this litigation, and because of that, we do not think it necessary to discuss the legal questions presented by the restrictions in the old deeds, especially in view of the fact that the judgment may be affirmed on another ground.

The plaintiff’s witness Brinckerhoff testified positively that the closing of the title was adjourned from time to time from the 15th day of May, 1905, the date mentioned in the contract, until the thirtieth or thirty-first day of October, the' vendee objecting from time to time on account of the restriction, and thus the matter rested on the thirty-first of October; but the defendant deliberately put it out of its power to convey the fee without incumbrance by reason of the lease for a term of five years. This was certainly a valid objection to the title, and was sufficient to justify the vendee in refusing to perform.

The defendant asserts, however, that these adjournments testified, to by defendant’s witnesses .were not actually had, and that the vendee without excuse defaulted.in June, 1905. We .are unwilling,, however, to interfere 'with the findings of fact in this respect, for the reason that they are supported by sufficient evidence, and there is no such preponderance of evidence in defendant’s favor as would warrant ns in reversing it as against, the weight of evidence. ■

The defendant’s position is also open to the objection that it failed to appoint a specific time for the passing of the deed after the matter had been adjourned and allowed to remain open. On June twelfth the attorney for the defendant wrote to the vendee that unless he was prepared to take title they would consider the amount paid forfeited, and expose- the premises'for resale. On June fifteenth the vendee wrote in reply that, owing to the vast -amount of work the title companies had ahead of them, he was necessarily delayed in obtaining the proper searches, but that he would do all in his power to urge them to complete the search and Would ad vise"him. On June seventeenth defendant’s attorney wrote back acknowledging the receipt of the letter of the fifteenth, and advising the vendee that he must make an additional payment, otherwise the defendant would offer the property for sale. This letter was not sufficient to serve the purpose of giving notice of the time and place of closing the title in order to make time of the essence and put the vendee in. default, for it fixed no definite time either for closing the title or for the payment of an additional sum upon the. purchase price. Such a notice must be definite in its terms. (Schiffer v. Dietz, 83 N. Y. 300; Darrow v. Cornell, 12 App. Div. 604; 30 id. 115.)

The judgment should, be affirmed, with costs.

Woodward, Jenks, Gatnor and Bien, JJ., concurred.

Judgment affirmed, with costs.  