
    George E. Loeffler, Appellant, v. Ben Bleier, Respondent.
    (Supreme Court, Appellate Term,
    May, 1909.)
    Vendor and purchaser—Enforcement generally—Action by vendor for purchase price — Conditions precedent — Tender of deed—When not required.
    Under a contract for the sale of real property, where the purchase price is to be paid in instalments and the deed is to be delivered upon payment of the last instalment, the vendor may maintain an action to recover any instalment or instalments other than the last one, where the last instalment is not due, without tender of a deed.
    The vendor’s right to recover an instalment due in such a case is not impaired by his erroneous claim of a right to elect that all instalments are due by reason of the vendor’s default, when the contract of sale contains no provision giving the vendor such right of election.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of Yew York, ninth district, borough of Manhattan, dismissing the complaint, without prejudice.
    .Sternberg, Jacobson & Pollock, for appellant.
    William P. Schoen, for respondent.
   Lehman, J.

The complaint herein alleges that, on the 22d day of July, 1908, the plaintiff and defendant entered into an agreement in writing wherein and whereby the plaintiff agreed to sell to defendant certain premises in Suffolk county, Yew York, and the defendant agreed to pay the purchase price of $245; and that, upon the payment of the said sum of $245, plaintiff agreed to deliver a deed of the property. The complaint further alleged that the plaintiff had complied with all the conditions of the contract, and there was due under the contract to the plaintiff the sum of $235. The defendant’s answer set up a general denial, liquidated damages and a partial defense that the contract was for payment in monthly instalments, and that only $60 was then due, and that the action was prematurely brought as to all but $60 thereof.

At the trial the plaintiff introduced the contract in evidence, testified that only ten dollars was paid thereon, and that he was ready, able and willing to give a deed of the premises. The defendant put in no evidence; and the trial justice dismissed the complaint, stating that, while the contract contained no clause for liquidated damages, the plaintiff had failed to show a cause of action, since he could not sue for the whole purchase price without first tendering a deed, citing Eddy v. Davis, 116 N. Y. 247, and cases therein cited.

The trial justice was correct in holding that, if all the instalments under the contract were due, plaintiff could not, under the authority of that case, recover without tender; hut in this case it clearly appears that all the instalments were not due and, since the contract contains no clause giving the vendor an option to consider all instalments due upon a default in the payment of particular instalments, the plaintiff had no election by which he could make those instalments due. That he mistakenly attempted to exercise such an election is immaterial.

ETo tender was, therefore, necessary to sustain a cause of action for the instalments then due. The sole question, therefore, in this case, is whether, under the pleadings and proof in this case, 'the court should have dismissed the- complaint, or only sustained the partial defense of the answer. The complaint herein has set forth a good cause of action; and, though the proofs do not sustain the plaintiff in his full claim, yet a recovery should he allowed for such amount as was actually due. McCready v. Lindenborn, 172 N. Y. 400. Even though it be urged that, in view of the fact that the complaint asks for the whole contract price and the proof shows that only a part was due, there is a variance between the allegation of the pleading and the proof, the court would he obliged to disregard the variance as immaterial, because the defendant has answered the complaint upon the correct theory, as shown by the proof, and has, therefore, not been misled.

The trial court should, therefore, have given judgment to the plaintiff for the sum of sixty dollars, with appropriate costs.

Judgment must, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event.

Dayton and Seabury, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  