
    Elisha E. McCarten, Appellant, v. Adella Smith, Respondent.
    
      Equity — specific pe-rformance.
    
    Appeal by the plaintiff from a judgment of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Nassau on the 15th day of December, 1918.
   Per Curiam:

We think this judgment should be reversed. The action was brought in equity for a specific performance of a contract to convey real property, or, if specific performance could not be decreed, then for damages. The court, having acquired jurisdiction in equity, should have granted whatever relief the plaintiff was entitled to, and should not have dismissed the complaint, with costs. Under the facts of this case, if specific performance could not be granted, then the plaintiff was entitled at least to the return of his deposit money, amounting to $200, and to his reasonable expenses in examining the title. We find no proofs in the case as to the latter item. The plaintiff attempted to establish a claim for damages for breach of the contract, that is, the difference between the agreed purchase price and the reasonable market value of the property. We think that under the particular wording of ’the contract the proofs did not entitle him to such damages, but as to his deposit and expenses, he was clearly entitled to recover when specific performance was refused. The judgment is reversed and a new trial granted, costs to abide the final award of costs. Jenks, P. J., Burr, Carr and Rich, JJ., concurred; Thomas, J., dissented. Judgment reversed and new trial granted, costs to abide the final award of costs.  