
    Edward J. McClaskey vs. The Mayor &c., of Albany.
    Although a purchaser of premises at an auction sale, fails to comply with the terms of sale, by paying the balance of the purchase money within the time specified, and the vendors thereupon declare the- sale void, still a specific performance of the contract may be decreed, in favor of the purchaser, where it appears that the execution of the contract by the vendors is not embarrassed by any new relations contracted with other parties; that the plaintiff has made repairs and improvements upon the premises as purchaser; and the vendors have received and accepted the 10 per cent required to be paid on the day of sale; and have executed and tendered a deed, and demanded performance, by the purchaser. And this, although the purchaser has never tendered, or offered, strict performance on his part, of the terms of the contract.
    A contract for the sale of lands, at auction, though it do not conform, in every particular, to the requisitions of the statute of frauds, may he rendered valid and obligatory by the subsequent acts of the vendors.
    Thus, where the vendors treated the agreement as valid, never repudiated it upon the ground that it was defective and inoperative of itself, but received that portion of the purchase money required to be paid on the day of sale, and tendered a deed, duly executed by them, apparently supplying all the deficiencies of the auctioneer’s certificate; Held that they were hound by the contract, and could be compelled to perform it, even though the auctioneer’s certificate was defective.
    Where a purchaser, asking for a specific performance, sought, by his complaint, in the first place, a performance by the vendors, of a modified agreement, but added that if it should be adjudged that the modification was unauthorized and invalid, then that the defendants he adjudged to convey the premises, upon payment of the residue of the purchase money, with interest, on such terms as should .he just; Held that this was, in effect, an expression of readiness and willingness to perform the contract, and was sufficient in point of form.
    
      Held, also, that although there had been no tender of strict performance, by the plaintiff, that was not a bar to relief, though it might appropriately affect the conditions on which relief should be given.
    APPEAL by the plaintiff from a judgment in favor of the defendants, entered upon the report of Isaac Lawson, Esq., referee.
    The action was brought for a specific performance of an alleged contract by or on the part of the defendants to convey to the plaintiff certain real estate called the Haymarket lot. The defendants, on the 23d of October, 1868, were a municipal corporation, owning the lands in question. On the 21st day of September, 1868, the defendants’ common council duly adopted a resolution authorizing and directing the land committee of said common council to advertise said lands and premises, and sell them at public auction, and directing the defendants’ mayor to execute a quit-claim deed" thereof to the purchaser at such sale, under the defendants’ seal.
    Said land committee consisted of three members of said common council, to wit, McCann, Mulhall and Mills. That committee, for several days, advertised the premises for sale at public auction on the 23d day of October, 1868, the terms of sale expressed in the advertisement being “ten per cent cash, on the day of sale, and balance within thirty days, on delivery of deed.” On the 23d of October, 1868, the premises were, pursuant to the advertisement, sold at public auction, under the direction of said land committee, upon the terms mentioned in the advertisement, to the plaintiff, as the highest bidder, for $12,200. The plaintiff paid the defendants $1,220, the ten per cent, and Kennedy, the auctioneer, signed and delivered to the plaintiff a paper, with a two cent stamp, signed by him, a copy of which is as follows:
    “Received, Albany, Oct. 23d, 1868, from Mr. E. J. McClaskey, twelve hundred and twenty dollars, being ten per cent of the purchase money on Haymarket lot, located on Philip, Plain and Hamilton streets, being the same as sold to him at public auction, this day, for the sum of twelve thousand two hundred dollars. Mr. James Hart being the bidder for Mr. McClaskey.
    Alex. Kennedy, Auctioneer.”
    The plaintiff was, at the time of the sale, and had been for several years, in possession of the premises as the defendents’ tenant, under a lease which expired May 1, 1869.
    Within thirty days horn the day of sale the defendants’ mayor, on behalf of the defendants, executed 'a quit-claim deed, of the premises, in proper form, affixed thereto the defendants’ seal, and duly acknowledged it. Within the same time and before the expiration of said thirty days, the defendants, by their chamberlain, tendered such deed to the plaintiff and demanded payment of the balance of the purchase money. The plaintiff did not pay the balance, stating to the chamberlain that he had been talking with some of the aldermen and land committee with regard to their taking a mortgage for a portion of the purchase money, and if they did not take the mortgage, he would pay the balance within the specified time.
    On the 20th of November, 1868, two days before the expiration of the thirty days, McCann and Mulhall, two of the land committee, signed and delivered to the plaintiff a direction or statement to the chamberlain that they had consented to alter the terms of sale; the purchaser to pay $2,000, and the balance of $10,200 to be secured by a bond and mortgage of five years.
    This writing was signed by McCann and Mulhall without the knowledge, consent or concurrence of Mills, the other member of said committee, and all the members' of the committee had never attended any meeting of the committee at which the subject of such a writing, or the question of the execution thereof, had been passed upon. McCann and Mulhall were the only members of the committee present at any meeting of said committee, at which the giving of such a writing was authorized or passed upon, or when the same was executed and delivered.
    Seventeen days thereafter, (December 7th,) the defendants’ common council passed a resolution that the plaintiff having failed to comply with the terms of sale, the said sale was declared void, and the land committee was directed to cause the property to be laid out in proper sized lots under charge of the city surveyor; that the same be then advertised for public sale, in single lots, to the highest bidder, for cash, between then and the 18th day of February, 1869. The referee further finds, that after the sale at auction, October 23d, 1868, and prior to said 7th day of December, 1868, the plaintiff made considerable repairs upon the premises, and had a quantity of lumber sawed for the express purpose of repairing the building already erected upon said premises, and for erecting new buildings which the plaintiff intended to erect thereon, which repairs the plaintiff would not have made, and which lumber he would not have had sawed, had not said premises been struck off to him at said auction sale, or had he not supposed that he became the purchaser thereof at such sale.
    The plaintiff never, prior to the suit, tendered or offered strict performance on his part of the terms or conditions of the contract of purchase made at said auction sale, on the said 23d day of October, 1868.
    Neither did the complaint in this action allege readiness or willingness on his part to perform said contract, or make any tender of performance, otherwise than in claiming the performance of the modified contract, it alleged as follows: “ Or in case it shall be adjudged that the modification of said agreement, by which the time and manner of payment for said premises was changed as aforesaid, was not authorized and invalid, then that the defendants be adjudged to convey said premises to the plaintiff upon the payment of the residue of the purchase money, with interest from the time of such sale, or upon such terms and conditions as may be just” * * * “and that the plaintiff may have such further or other relief, in the premises, as may seem to the court meet and agreeable to equity.”
    The plaintiff was allowed to amend his complaint upon the trial, and the complaint' is given in the case, as amended. The answer was also amended on the trial, but that is not given, in the case, as amended. The referee ordered judgment for the defendants, holding that the repairs, improvements and expenses put by the plaintiff upon the premises were made by him as purchaser, and would have entitled him to a specific performance but for his other findings of fact and conclusions of law.
    
      Matthew Hale, for the appellant.
    I. Upon the facts, as found by the referee, the plaintiff is entitled to relief, even if his conclusion of law, as to the invalidity of the change in the time of payment, agreed to by the majority of the “land committee,” be conceded to be correct. The referee holds that the plaintiff’s rights, under the contract, are barred and terminated, upon the grounds: (1.) That the defendants tendered performance before the expiration of the 30 days, and the plaintiff failed to accept. (2.) That the defendant, by resolution of December 7th, 1868, determined to abandon the contract. (3.) That the plaintiff has never tendered performance of the original contract. (4.) That he does not, in his complaint, allege readiness or willingness to perform. It is submitted that none of these grounds are sufficient to sustain the referee’s conclusion. 1. As to the tender by the defendants. The facts relating to this are undisputed. The chamberlain did tender a deed and demanded the balance of the purchase money. But the plaintiff did not refuse. He told the chamberlain in substance, that he expected a change to be made as to the time of payment, and that if it was not made, he would pay within the specified time. The change was made by the majority of the land committee, and because he believed the committee had power to make it, and that the change was valid and binding on the defendants, he relied upon it, and made a tender, not according to the original agreement, but in conformity with the contract as.varied. Although mistaken as to the validity of the change, he did not thus forfeit his rights. (a.) Time was not of the essence of the contract. (Fry on Spec. Perf. 314. Waters v. Travis, 9 John. 450, 466. Viele v. Troy & B. R. R. Co., 21 Barb. 381. Williston v. Williston, 41 id. 635. Cythe v. La. Fountain, 51 id. 186. Miller v. Mayor, &c., 53 id. 653.)
    (5.) Here a good reason for not performing within the thirty days is shown. The officers of the defendants, a majority of the same committee that made the sale, gave him a written consent to the extension of time and a change of terms. Believing that they had power to do this, he tendered performance under that modification. It would be a harsh rule, and one at variance with all ideas of equity, if by reason of a mistake as to the law, into which the plaintiff was led by the officers and agents of the defendants, he should be held to have forfeited all his rights, including the $1,220 paid, and the money expended for improvements, (c.) Time not having been originally of the essence of the contract, the tender by the chamberlain did not make it so. He apparently acquiesced by silence, in the reason for not then paying, given by the plaintiff. At any rate there is no pretence that he gave the plaintiff any notice that a forfeiture would be enforced. 2. As to the resolution of the common council of December 7. {a.) There is no proof that this resolution was ever communicated to the plaintiff. It was simply a declaration of the defendants in their own favor and was improperly admmitted in evidence. (5.) It would have been entirely immaterial, even if it had been communicated to the plaintiff. Neither party can arbitrarily and suddenly put an end to a contract. A notice, to have any effect to produce a forfeiture, must give the party a reasonable time within which to perform. (Fry on Spec. Perf. 317, 318. Taylor v. Brown, 2 Beav. 184. King v. Wilson, 6 id. 125. Pegg v. Wisden, 16 id. 539. Parkin v. Thorold, id. 59. Cythe v. La Fontain, 51 Barb., 186.) And the notice must be express, distinct, and unequivocal. (Fry, 319. Reynolds v. Nelson, 6 Mad. 18.) 3. As to the plaintiff’s omission to tender performance before suit, (a.) He did tender, under the contract as modified, in the belief that the modification was valid and binding. (b.) The omission to tender could at most affect only the question of costs. It could not work a forfeiture. (Gardiner v. Stevenson and Maxwell, 2 Comst. 408, 415. Bruce v. Tilson, 25 N. Y. 194.) 4. As to the alleged omission to tender performance in the complaint, (a.) The complaint does, in substance, if not in form, offer to perform* the original terms of contract, if the modification should be declared invalid, by asking for a judgment that the defendants convey upon payment of the balance due and interest. (b.) But if it is clear that the plaintiff has rights under the contract, which entitle him to relief under the facts proved, such relief will be awarded without reference to the contents or prayer of the complaint. Such was the old rule in equity, and certainly is under the Code. (2 Story’s Eq. Jur. 770, a. Lobdell v. Lobdell, 36 N. Y. 327. Mills v. Van Voorhies, 20 id. 412, 422, Selden, J. Reeves v. Kimball, 40 id. 299. Code, §§ 169, 173.) Judge Selden says in 20 N. Y. 222: “It is of no consequence that no such offer is made or relief asked in the complaint.” In the case of Reeves v. Kimball (supra), the referee found the tender insufficient, but adjudged the plaintiff to be entitled to a deed on paying the right amount. The plaintiff appealed to the Court of Appeals, which affirmed the judgment, and still' gave the plaintiff additional time within which to pay the amount.
    Upon the facts as found by the referee, and upon the law as found in his first three conclusions, the plaintiff was entitled to a judgment that the premises be conveyed to him upon payment of the balance due and interest, within a reasonable time to be fixed by the court.
    II. The referee’s findings of fact, in relation to part performance, are abundantly sustained by the evidence. His conclusion of law, that the repairs and improvements were made by the plaintiff in reliance upon the contract, and substantially, that this part performance took the contract from out of the operation of the statute of frauds, is sustained by all the authorities. (Dart on Vendors, 477. 2 Story’s Eq. Jur. §§ 762, 763. Fry on Spec. Perf. § 401. Williston v. Williston, 41 Barb. 642, 643. Lobdell v. Lobdell, 36 N. Y. 327. Dowell v. Dew, 1 Yon. C. C. C. 345.) But it was unnecessary to resort to this doctrine of equity to sustain the validity of the original contract. 1. The memorandum signed by the auctioneer was sufficient. (2 R. S. 135, § 8. See McComb v. Wright, 4 John. Ch. 659; Emerson v. Heales, 2 Taunt. 38; Kemeys v. Proctor, 3 Ves. & B. 37; Pinckney v. Hagadorn, 1 Duer, 89, 96.; 1 Sugd. on Vend. 87; Fessenden v. Mussey, 11 Cush. 127.) 2. If it was insufficient, the subsequent execution of the deed, supplied the defect.' That deed contained everything required by the statute, the names of the parties, the price, and Mr. Paige thinks it recited the resolution and the sale, and its terms. It was subscribed by the mayor on behalf of the defendants, and sealed with the city seal, (a.) The statute does not require the note or memorandum in writing to be made at the time of the contract of sale. (Webster v. Zielly, 52 Barb. 482. Gale v. Nixon, 6 Cowen, 445.) (b.) Nor is it required that it should be an instrument signed by or between both parties. It has been held that a letter written by the vendor to a third person, containing directions to carry the agreement into execution, was sufficient. (1 Sugd. on Vend. 88, 95. Smith v. Watson, Bun. 55.)
    III. The referee erred in his third conclusion of law. 1. The committee were authorized to sell by the resolution of September 21, 1868. No terms of payment were prescribed by the common council. These were left without limitation, to the committee. To alter the time of payment was within the authority conferred by the resolution. 2. The meeting of the committee seems to have been called in the usual way. McCann says he had called a meeting of the committee. He usually asked the city marshal to notify members. Foy, who served the notices, swears to his usual practice, though he has no particular recollection as to this occasion. Mills’s affidavit that he “never knew or heard of any consultation of the members of the land committee for the purpose of considering any agreement or proposed agreement” on this subject, amounts to nothing. He does not deny that he had notice of the meeting of the land committee held on the 20th of November, (a.) If he had notice, his failure to attend did not invalidate the action of the majority. (Horton v. Garrison, 23 Barb. 174,176. McCoy v. Curtice, 9 Wend. 17. People v. Supervisors, 10 Abb. 233, 245.) (b.) The legal presumption is that he had notice. (Doughty v. Hope, 3 Denio, 249. Downing v. Rugar, 21 Wend. 178.) (c.) This presumption is strengthened by the evidence of McCann and Foy, and is not rebutted by any evidence in the case.
    TV". The referee erred in the admission and exclusion of evidence. 1. In admitting the resolution of December 7, 1868. 2. In rejecting evidence of statements made by the mayor and city attorney to the plaintiff, upon which he acted. This evidence was competent; if not as an admission of the defendants, (who could speak only by and through their officers,) certainly to show a reason, in equity, for not, within the thirty days, tendering the balance of the purchase money. It would be a gross violation of the principles of equity to hold that the action of the plaintiff, to which he was led by the advice of the chief executive officer and the official legal adviser of the defendants, worked a forfeiture of his rights, and thus transferred to the defendants, without compensation, title to the money paid, and valuable improvements made by the plaintiff.
    
      V. The facts proved, show a strong case in equity for the plaintiff, entitling him to relief. 1. His original purchase was at public auction. ¡No pretence is made of fraud on his part; or that the price bid was not a fair one. 2. He paid ten per cent of the purchase money, and on the faith of the purchase, expended large sums in permanent and valuable repairs and improvements. 3. When applied to for the balance of the purchase money by the chamberlain, he informed that officer that he was negotiating for a change in the tune of payment, but if he did not succeed in this, he would pay within the specified time. 4. He did succeed in this, as he believed, and as he was advised by the mayor and city attorney. A majority of the same committee of whom he bought, signed a consent to extend the time of payment, on certain conditions, with which he complied. 5. Belying upon this modification, he made his tender in accordance therewith, and brought his suit for specific performance, asking, however, if the court should not find the change valid, to be permitted to pay under the original contract. 6. ¡No notice was ever given to him by the defendants, giving him any time within which he must comply or forfeit his contract. 7. In the whole transaction the plaintiff has acted in good faith, and there is no pretence that he has ever intentionally waived or abandoned any of his rights under the contract. It is submitted that upon these facts there can be no doubt of the plaintiff’s right to relief. The referee has entirely mistaken the rules that govern a court of equity.
    VI. The judgment of the referee should be reversed. If the court think the change in the terms of the payment was valid, the plaintiff should be adjudged entitled to a deed and to costs of the suit. If, on the other hand, the referee’s conclusion in regard to the action of the land committee, should be sustained, the defendants should be adjudged to convey on the plaintiff’s paying the balance of the purchase money and interest within a reasonable time, to be fixed by the court, with such provision as to costs as the court may deem equitable. But in any case the plaintiff should bear the costs of the appeal.
    
      N. C. Moak, for the respondents.
    I. The power, delegated to the land committee by the common council, was special, to adyertise and sell at auction and for cash. ' 1. A written power to an agent to sell in a particular manner does not authorize a sale in a different one. (Bank of State of Indiana v. Bug-bee, 3 Keyes, 463. Bush v. Cole, 28 N. Y. 261. Niles v. Smith, 2 Code R. 31. S. C., 1 Liv. U. S. Law Mag. 37.) The party purchasing neglects an examination, of the agent’s authority at his peril. (Bank, &c., v. Bug-bee, 3 Keyes, 463. North River Bank v. Aymar, 3 Hill, 262. 2 Kent's Com. 622, marg.) And is bound to understand its legal effect. (Bank, &c., v. Bug-bee, 3 Keyes, 463. North River Bank v. Aymar, 3 Hill, 262.) Even usage will not enlarge or affect a written authority. (1 Pars. on Cont. 58, 5th ed.) 2. A power to sell, without designating how, means a sale for cash, and not upon credit, unless the agent is expressly authorized to sell on credit. (2 Kent's Com. 622, marg. Delafield v. State of Illinois,26 Wend. 223-225. 1 Pars. on Cont. 58, 5th ed. Wiltshire v. Sims, 1 Campb. 258.) And an authority to sell on credit does not authorize the agent to sell for cash, and to receive payment. (30 Penn. 513.)
    II. Even had all the members of the land committee made an absolute, unconditional, agreement with the plaintiff to accept, a mortgage for $10,200 of the purchase money, such agreement would have been absolutely void, and the plaintiff was bound to know it. 1. It was not a sale at public auction where the premises, under such an agreement, would be be open to competition. 2. It was not a sale for cash. The premises might or might not prove to be adequate security for the payment of the amount secured by the mortgage. 3. If the committee could sell at public auction, and for cash, and then privately agree with the purchaser, without an opportunity for competition, to accept a mortgage for five-sixths of the purchase money, the grossest frauds might be thus perpetrated, and a sale secured to some favorite of the committee, who had been privately given to understand he would be thus accommodated. 4. Honest bidders and purchasers, with a moderate capital, might be thus driven from competition; for, whether the purchaser should be thus accommodated would be a matter resting purely in the discretion of the land committee, which they might see fit to exercise in one case and refuse in another. 5. It is a well known fact that there is a more active competition, and necessarily, a larger number of bidders for property sold on credit than for that sold exclusively for ready money, and that higher prices are secured when credit is given. 6. Whether credit was, or was not authorized, the committee were bound to fix the terms before sale, and sell on those at auction, so as to afford a fair competition. 7. The resolution of September 21, 1868, directed the committee to advertise and sell the lot. When they had done so, their powers and duties ceased, and the mayor’s commenced. It was not a continuing power, but a single one, and once exercised was functus officio. (Manufacturers, &c., Bank v. Cowden, 3 Hill, 461. The People v. Woodruff, 32 N. Y. 355. Matter of Hollister Bank, 27 N. Y. 393.)
    III. Even if the land committée had power to receive a mortgage, two of its members had no authority to change the terms of the agreement without notice to the third, of the meeting and its object. (2 R. S. 555, § 27, marg. 2 Edm. Stat. 575.) This provision of the statute was merely in affirmance of the common law. The object was to secure to the public the advice and judgment of all; the exposing the mind of each to all of those upon whom the law conferred power to decide upon the propriety or necessity of acting for a public purpose, (Keller v. Frost, 22 Barb. 400;) and applies to all officers having a joint authority, (The People v. Williams, 36 N. Y. 441; Lamoreaux v. O'Rourke, 2 Keyes, 499; Bulson v. Lohnes, 29 N. Y. 291; Beekman's Petition, 1 Abb., N. S., 449;) and to private persons acting under authority. (21 Wend. 178. 35 N. Y. 158. 22 id. 128. 6 John. 39.) The direction (not agreement) to the chamberlain to take a mortgage, was executed by but two members of the committee. This arrangement, with the two, was made by- the plaintiff himself, and he was bound to know, before acting or relying upon it, whether or not the third had been notified of the meeting and its object.
    IV. The receipt given to the plaintiff by Kennedy, the auctioneer, was not a sufficient memorandum to bind the defendants, within-the statute of frauds, requiring that “every contract * * for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof, expressing the consideration, be in writing, and subscribed by the party by whom the * "* sale is to be made.” (2 R. S. 135, § 8, marg. 2 Edm. Stat. 139, § 8.) 1. It was merely intended as a receipt, and was stamped as such. 2. It did not even contain the name of the defendants as the vendors. 3. It did not state the terms of the sale, the time when the balance should be paid, nor any contract by the defendants to convey. 4. Such a contract cannot be partly in writing and partly in parol. (Wright v. Weeks, 25 N. Y. 153. Emerson v. Slater, 22 How. U. S. 42. Sale v. Darragh, 2 Hill. 185.) The agreement must specify the price, time of delivery and time of payment. (Stocker v. Partridge, 2 Rob. 193. The memorandum must be completely intelligible without resort to verbal testimony, for otherwise the very object of the statute would be frustrated, (Story on Sales, § 269; 3 John. 399; 13 id. 297;) and must show who is the vendor, (Calkins v. Falk, 38 How. 62; Vandenbergh v. Spooner, Law. R. [1 Exch.] 316;) and verbal testimony is inadmissible to show any portion of the contract necessary to make it a valid one. (Wright v. Weeks, 25 N. Y. 153. Story on Sales, § 269.) A mere receipt is insufficient. (McQuade v. Warrin, 12 N. Y. Leg. Obs. 250.) The statute applies to sales at auction. (Story on Sales, § 269.) The statute as to auctioneers’ memoranda binding the parties, does not apply to sales of real estate. (Champlin v. Parish, 11 Paige, 406, 410.) 5. Even if the paper signed by McCann and Mulhall had been authorized, it was not a sufficient memorandum, for it did not mention the defendants as vendors.
    V. The auctioneer’s receipt was not helped by the deed made out and executed by the mayor, wMch was never delivered to or in the possession of the plaintiff. “And although drawn up as the final obligation, if it is retained by the party signing it, and never in any way delivered as his agreement, it cannot bind him.” (Browne on Stat. of Frauds, § 354. Parker v. Parker, 1 Gray, 409. Grant v. Levan, 4 Barr, [Penn.] 393. Johnson v. Brooks, 31 Miss. 17. Sanborn v. Sanborn, 7 Gray, 142.) An undelivered instrument is of no value as an obligation and has no force as a contract, (Robinson v. Cushman, 2 Denio, 153;) and no rights pass under it. (Jackson v. Leek, 12 Wend. 105.)
    VI. The plaintiff was not entitled to a specific performance on account of alleged repairs and improvements upon the premises. 1. There was no stipulation or agreement in the advertisement published, in the alleged consent to modify the terms of sale by McCann and Mulhall, nor even by parol, that the purchaser should have or be entitled to any possession whatever under the contract of sale until its terms were complied with. Under such a sale, even as claimed to have been modified, the payment of the balance of the purchase money, or the giving of the mortgage therefor, by the purchaser, was a condition precedent, or, at least, a dependent condition. (Grant v. Johnson, 5 N. Y. 247. Paine v. Brown, 37 id. 233.) An agreement to sell lands gives to the purchaser no right of entry or possession until performance on his part, where the deed is to be delivered, on payment of the purchase price, or a portion thereof, unless it be expressly stipulated by the terms of the agreement that he shall be entitled to possession thereunder. (4 Kent's Com. [Comst. ed.] 516, note 3, marg. p. 450. Eggleston v. N. Y. and Harlem R. R. 35 Barb. 167. Ela v. Pennock, 38 N. H. 155.) 2. The mere fact that the plaintiff was a tenant in possession, as such, gave him no greater rights under his alleged contract of purchase, than if he had not been in possession at all. (a.) By the express terms of the advertisement, the sale was to be “subject to a lease of premises to expire on the 1st of May, 1869reserving the plaintiff’s possession as tenant until that time. There could be no merger of the defendant’s lease until he acquired title as owner, (b.) Suppose some person other than the plaintiff had been the purchaser, the plaintiff would have continued, until the 1st of May thereafter, in possession under his lease, and the purchaser would not have been entitled to possession, under his contract of purchase, until that time, (c.) Suppose the plaintiff had failed (as he did) to perform his contract, he would still have been entitled until May 1st, to possession under his lease, and the relation of landlord and tenant would have continued to exist between the plaintiff and the defendants. (Fry on Specific Perf.p. 253, § 387, marg. p. 176, 2d Am. ed.) In Hatcher v. Hatcher, (1 McMull. ch. 311,) it was held that remaining in possession by the purchaser, if he was in possession at the time of his purchase, does not constitute such a part performance as will take the case out of the statute. {d.) There was no evidence, or pretence of any, that the defendants ever consented that the plaintiff should change his relation to them until performance on his part; or that they knew or had the slightest suspicion he so claimed; or that he intended to make any improvements under a claim of purchase. This court, in favor of affirmance, is bound to assume the referee found the facts as above claimed, under this subdivision. (40 N. Y. 248.) 3. To entitle a purchaser to a specific performance, on the ground of alleged improvements, they must have been made under a possession pursuant to the terms of the contract of sale by the consent of the seller, and with knowledge on Ms part that the purchaser entered or intended doing so under the contract of purchase. “Nor is a possession without delivery, or without the intention or consent of the owner, sufficient; still less if the possession has been obtained by fraud or indirection. So a mere continued possession by the plaintiff, he having been in possession before the contract, is not enough, unless there be declarations or circumstances distinctly showing that his continuity of possession is in pursuance and execution of the contract and so regarded by the parties. TMs may be made apparent by paying more rent, or making improvements, or expending money, or doing other things required by the contract.” (3 Pars. on Cont. 393, 5th ed. Frame v. Dawson, 14 Vesey, 386. Williston v. Williston, 41 Barb. 643. Rathbun v. Rathbun, 6 id. 98.) “The possession, when set up as an act of part performance, must be referable to the agreement. It must be either delivered by or taken with the consent of the vendor. If otherwise, it cannot avail.” (Jervis v. Smith, Hoff. Ch. 470.) The act must be in part performance of that particular contract. (Phillips v. Thompson, 1 John. Ch. 131.) Where a vendee of real estate, under a parol contract, relies upon his entry into possession, to take it out of the statute of frauds, his entry must be connected with, and referable to the contract, and it must clearly appear that he took the possession with the known permission of the vendor. (Lord v. Underdunck, 1 Sandf. Ch. 46. Byrne v. Romaine, 2 Edw. Ch. 445.)
    ■ VII. Payment of a portion of the purchase money was not a sufficient part performance to entitle the plaintiff to a decree for specific performance. (Fry on Specific Perf. 261, § 403, marg. p. 182, 2d Am. ed. Story’s Eg. Jur. § 760. Haight v. Child, 34 Barb. 186.) “The beneficial provisions of the statute of frauds have been sufficiently broken in upon already; and the doctrine of part performance should not be extended to new cases which do not come clearly within the equitable principles of previous decisions.” (German v. Machin, 6 Paige, 293.)
    VIII. If any of the above objections are a bar- to a recovery, then the question of whether or not time is of the essence of the contract does not arise. It is only when that is the only obstacle to a recovery that it is material. If, however, the court should not deem any of them well taken, then we insist it is. Tire terms of sale were that the balance of the purchase price •should be paid “within thirty days, on delivery of the deed.” This gave the defendants a right to tender the deed at any time within thirty days, although, perhaps, the plaintiff could insist, when they did so, he had until the expiration of the thirty days to pay. But after a tender was once made it was his duty to seek the defendants’ agent and offer to perform. He did not do so, and did not put the defendants in default, although expressly notified they would insist upon performance. Where a tender has been made, and a party refuses or neglects to perform, he is not entitled thereafter to specific performance. (Haight v. Child, 34 Barb. 187.) 1. Time is of the essence of the contract, even in an action for specific performance, and the court will not interfere in behalf of the party in default, unless he clearly shows he was misled by the adverse party, or there was some accident or good excuse for the failure, especially if the property is of greater or less value, according to the effluxion of time. (Gale v. Archer, 42 Barb. 320.) The rule of courts of equity, that in some cases time may be regarded as not of the essence of the contract, does not extend so far as to enable a party in default to obtain affirmative relief in equity, in a case where he shows neither any good reason for nonperformance by the day named in the contract, nor any peculiar equity. (Chase v. Hogan, 3 Abb. N. S. 65. 4 Rob. 97.) In the language of Chancellor Kent, “time is a circumstance of decisive importance in these contracts, but it may be waived by the conduct of the party; that it is incumbent on the plaintiff, calling for a specific performance, to show that he has used due diligence, or if not, that his negligence arose from some just cause, or has been acquiesced in; that it is not necessary for the party resisting the performance, to show any particular injury or inconvenience; it is sufficient if he has not acquiesced in the negligence of the plaintiff, but considered it as releasing him.” (Benedict v. Lynch, 1 John. Ch. 379.) Where a party who applies for a specific performance, has omitted to execute his part of the contract by the time appointed for that purpose, without being able to assign any sufficient justification or excuse for his delay, and when there is nothing in the acts or conduct of the other party that amounts to an acquiescence in that delay, the court will not compel a specific performance. (Benedict v. Lynch, 1 John. Ch. 375, 376.) In an agreement for the sale of lands, time is always material when either party chooses that it shall be so. Bach of them has a right to demand the performance of the contract on the stipulated day; and if the other party is then unwilling, or unable to perform, may instantly elect to rescind it. (Dominick v. Michael, 4 Sandf. 374, 426.) 2. The defendants did insist upon the performance of the contract. Its chamberlain several times called upon the defendants and demanded it, and it was as often refused, because the plaintiff claimed the contract no longer existed. The defendants did not slumber upon their rights, or acquiesce in the delay. The thirty days expired October 20, 1868. At the next meeting of the common council the contract was rescinded, if any was ever made, and the property directed to be otherwise disposed of. 3. This action was not commenced until after the contract was rescinded, and the property was again advertised for sale. The plaintiff slumbered upon his rights, and is not in any view of the case entitled to relief. (Story's Eq. Jur. § 771.)
    IX. Before the plaintiff could maintain an action, he was bound to tender performance of the alleged agreement for the purchase of the property. When a party is notified, as the plaintiff was by the chamberlain repeatedly, and by the advertisement before the commencement of this action, or even by service of a summons in ejectment, that the vendor will no longer acquiesce in delay of “payment, he is bound “to act promptly by tendering payment and asserting his claim to a performance of the contract, or his equity will be lost.” (Tibbs v. Morris, 44 Barb. 138.)
    X. The bill was properly dismissed, because the plaintiff did not allege, nor prove, readiness to perform the alleged agreement for the purchase. It is true he alleges a readiness to perform the attempted void and worthless modified contract, and offers to perform that. Even this was not proven on the trial. The complaint nowhere shows the plaintiff was ever ready or willing to perform the alleged contract of purchase made at the auction sale, nor does it offer to perform the same. This is absolutely necessary. Haight v. Child, 34 Barb. 186. Kort
      
      right v. Cady, 23 Barb. 490. Colson v. Thompson, 2 Wheat. 336. Cole v. Savage, Clarke’s Ch. 482. 1 Abb. Plead. and Forms, 590, 592. 3 Dan. Ch. Pr. 1908. Hughes’ Eq. Draftsman, 10, marg. p. 11.) And must prove readiness on the trial. (Haight v. Child, 34 Barb. 187. NcNeil v. Magee, 5 Mason, 245, per Story, J. Colson v. Thompson, 2 Wheat. 336.) And at least, then must bring it into court. (45 Barb. 534. 23 Wend. 342.)
    XT. It was not only necessary for the plaintiff to allege and prove readiness to perform on his part, but it was necessary to bring the money into court, whether the tender of performance was before suit or by the complaint. Where a plea of tender is made, it is of no avail unless the party bring the m oney into court. (Kortright v. Cady, 23 Barb. 490. Simpson v. French, 25 How. 464. Halsey v. Flint, 15 Abb. 367, 372, per Hogeboom, J. The People v. Banker, 8 How. 258.) In Jarbol v. Me Alies’ Heirs, (7 B. Monr. 279,) the court said : “But were the evidence on this point sufficient, in order to make a tender available in a case of this kind, it is incumbent to pay the money into court, so that during the long progress of a chancery suit, it may, under the control and direction of the chancellor, be rendered productive. In a plea of a tender at law the party, to get the benefit of his plea, has to bring the money into court. Much stronger reason requires this to be done in a case to be settled by the chancellor.”
    XII. No errors were committed by the referee in his rulings as to evidence, but if there had been, there being a flat bar to the suit, no injury resulted to the plaintiff therefor, and the judgment should not be reversed for that reason. (Forrest v. Forrest, 25 N. Y. 501. The People v. Gonzalez, 35 id. 60.)
   By the Court, Hogeboom, J.

1. The first agreement, I am inclined to think, was valid and obligatory. Though its validity is disputed, I think the course of the defendants in regard to it, made it operative on them, whether it originally conformed or not in every particular to the requisitions of the statute of frauds. The defendants treated it as valid; never repudiated it upon the ground that it was defective and inoperative of itself, and themselves actually tendered a deed duly executed by them, apparently supplying all the deficiencies, of the auctioner’s certificate. They authorized the sale; they made it; they received the ten per cent; they executed and tendered the deed. I think they were bound by the contract, and ought to have been compelled to perform it.

2. I do not think there was any absolute and intentional refusal to perform on the part of the plaintiff. He designed to take the premises and pay the purchase money; but by reason of conversations had with the defendants’ agents, expected to obtain easier terms of purchase. He offered to comply with those terms. He actually agreed with the committee • of the common council upon the terms, and made an ineffectual offer to comply with the contract as thus modified, and thus evinced his good faith and bona fide intent to complete the purchase. He may have made a mistake as to his legal rights, but I think the foregoing facts, in connection with those hereafter referred to, entitle him to relief upon some terms, unless the situation of the parties has been materially altered.

3. In further accomplishment of his expected purchase, he made considerable repairs and improvements upon the premises ; and he made them in the character of purchaser and not of tenant; and they were of such a nature, as the referee finds, as would have entitled him to a specific performance bnt for his other findings of fact. What then are the inseparable objections (if any) to giving the plaintiff equitable relief %

4. The first of these is said to be, that the defendants by resolution declared the contract terminated. This is not decisive. TMs was their own act, and was not done in the presence of the plaintiff, nor ever communicated to him. The tender of the deed and the demand of performance by the defendants, was some time before the expiration of the tliirty days ; and I tMnk the plaintiff had the full thirty days witliin which to complete performance on Ms part. True, he did not do it according to the terms of the original contract, but he did it (manifesting his good faith) according to the terms of the modified arrangement, wliich he had made with the committee of the common council, and which lie supposed to be valid. True, the offer on his part was refused, but not because he had not made an effective purchase, nor because the defendants claimed they had terminated the contract, for they never gave Mm notice that they intended to take any such ground. I think there are equitable reasons why the plaintiff should have the property, arising out of his purchase of it—Ms evident tona fide attempt to obtain it—Ms improvements put upon it as purchaser—the loss to which he will inevitably be subjected if the purchase is not completed— and the failure of the defendants to show that they have embarrassed themselves in the execution of tMs contract by any new relations contracted with other parties.

5. The remaining reason alleged by the referee for debarring the plaintiff from relief, is, that he had not offered or tendered performance of the contract, in his complaint, and does not allege, in Ms complaint, a readiness or willingness to perform the same.

The complaint was, upon that subject, all that is necessary to entitle the plaintiff to relief. It seeks, in the first place, a performance of the modified agreement, but adds, that if it be adjudged that the modification was unauthorized and invalid, then that the defendants be adjudged to convey the premises upon payment of the residue of the purchase money, with interest, on such terms and conditions as shall be just. This is, in effect, an expression of a readiness and willingness to perform the contract, and although there has been no tender of strict performance, that is not a bar to relief, but may appropriately affect the conditions on which relief may be given.

[Albany General Term,

March 7, 1870.

Hogeboom, Peckham and Miller, Justices.]

All the facts being before the court, it would seem unnecessary to send the case back for re-trial, and the appropriate judgment would seem to me to be to reverse the judgment of the referee, without costs of appeal to either party, and to order specific performance of the contract, in favor of the plaintiff, on his payment of the balance of the purchase money, with interest, within thirty days after service of a copy of this order, and also of the costs of the action, up to and including the referee’s report, within thirty days after the same are duly taxed and adjusted, on notice.

Or, if it shall be deemed necessary or advisable to award a new trial, that the judgment be reversed and a new trial granted, without costs of appeal to either party, as against the other.

New trial granted.  