
    Adelaide B. Styles, Pl’ff, v. Joseph Blume, Def’t.
    
      (New York Common Pleas, Equity Term,
    
    
      Filed June, 1894.)
    
    1. Contract—Specific performance.
    Specific performance will not be decreed, where it is unjust and inequitable and will result in giving to one party an advantage for his own wrong.
    2. Same—Money judgment.
    In such case, a court of equity is not precluded from awarding a money judgment merely, especially where the defendant has submitted to its jurisdiction.
    
      
      Johnston & Johnston (Edward W. S. Johnston, of counsel), for pl’ff; A. J. Skinner, for deft.
   Bookstaver, J.

This action was brought for the specific performance of a contract for the sale of certain real estate in this city, or in case the defendant cannot make good title, then for judgment for the amount deposited on signing the contract, and her expenses in searching title, etc. On the trial defendant offered to allow judgment for specific performance and claimed plaintiff had no right to more or different. But it then appeared that since the failure of the defendant to complete at the time engaged upon between the parties and since the commencement of the action, the property has depreciated" in value and although defendant claimed to be ready to give a title in fee. It also appeared that when the title was to be closed there was an outstanding claim of title in the father of defendant, and that no quitclaim or other deed had ever been delivered or recorded releasing the claim, nor was such deed tendered on the trial. It is also admitted that at the time there were unpaid taxes and water rates and an assessment for a sewer in Eighth avenue against the property. Under such circumstances I think it would be unjust and inequitable to decree specific performance merely for that would result in giving the defendant an advantage for his own wrong, and thereby the parties would not be placed in the coudition they were before the contract was signed.

See Fitzpatrick v. Dorland, 27 Hun, 29; Dady v. The Mayor, etc., 32 St. Rep. 1082.

Nor do I think that a court of equity is precluded in a case like the present from awarding a money judgment merely as this is the only judgment which would give adequate relief and the defendant has not by his answer claimed the action was properly brought, or that tíre plaintiff had an adequate remedy at law, but has submitted to the forum. But plaintiff can only recover the amount of her deposit and expenses in searching the title. What she expended in excavating, etc. was done at her risk and on a mere consent given by the defendant, which does not render him liable for such expenses.  