
    Richard G. Platt, Appellant, v. Joseph J. Zimmermann et al., Respondents.
    (New York Superior Court — General Term,
    July, 1895.)
    Specific performance is not to be had as of right, but rests largely in the discretion of the court.
    At the time for closing a contract for an exchange of properties the plaintiff was not prepared to perform, and in fact did not acknowledge his deed until four months later, and the property was subject to liens for taxes and assessments which have not yet been paid. Held, that there was such a want of diligence and inexcusable neglect on his part as to warrant a withholding of specific performance.
    Appeal by plaintiff from judgment rendered at Equity Term dismissing the complaint upon the merits.
    
      Frederick Hughes (F. F. Parker, of counsel), for appellant.
    
      J. George Flammer, for respondent.
   Per Curiam.

On the day and at the hour and place named in the contract for the exchange of the properties in question the defendant Joseph J. Zimmermann attended, ready, able and willing to perform on his part. The plaintiff was unprepared, applied for an adjournment, and on this being refused, made no effort to consummate the exchange until two days afterwards. The plaintiff’s deed was not acknowledged until nearly four months after the time fixed for its delivery. There were unpaid on the plaintiff’s property at these times and up to the trial taxes for 1893, $440 ; for 1894, $322.20, besides an assesment and unpaid water rents. No moneys were to pass upon the exchange, so that deductions for the unpaid taxes, etc., could not have been made from the purchase money, as in Webster v. Kings Co. Trust Co., 80 Hun, 420, and kindred cases.

Hnder the circumstances the plaintiff was guilty of want of diligence and inexcusable neglect, sufficient to warrant the trial judge in withholding specific performance, which is not to be had as of right, but rests largely in the discretion of the court.

Though time is not regarded in equity as of the essence of a contract, it is in all cases so far material that it cannot be allowed to pass without evidence satisfactorily excusing the default. 3 Pom. Eq. Juris. 455.

Though the case is close we find no abuse of discretion, and no error which requires a new trial. The judgment is, therefore, affirmed, with costs.

Present: Fkbedman and Mo Adam, JJ.

Judgment affirmed, with costs.  