
    Maury v. Post.
    
      (Supreme Court, General Term, Second Department.
    
    February 12, 1890.)
    Specific Performance—Contract—Certainty.
    A contract by defendant to sell to plaintiff a certain defined right of way over defendant’s land, at a price to be fixed by three named arbitrators, will, when the award is duly made, be specifically enforced, as the arbitrators’ award is equivalent to a liquidation of the consideration by the land-owners.
    Appeal from special term, Orange county.
    Action by Mytton Maury against Alfred B. Post to enforce the specific performance of a contract entered into between plaintiff and defendant for the conveyance of a right of way over and across defendant’s land. From a judgment in plaintiff’s favor, defendant appeals.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      W. H. Wyker, (Harrison W. Nanny, of counsel,) for appellant. W. D. Mills, for respondent.
   Dykman, J.

It was the object of this action to enforce the specific performance of a written contract between the parties, drawn and executed for a double purpose. The plaintiff was the owner of a tract of about 217 acres of land, which was surrounded on three sides, and a portion of the fourth side, by swamp. The defendant was the owner of lands lying between the land of the plaintiff and the highway; and there was a lane and way, fixed and defined, across the land of the defendant, from the Goshen and Decker-town turnpike to the land of the plaintiff. The lane was fenced a part of the way, and unfenced for the remainder. Negotiations were opened between these parties for a conveyance to the plaintiff by the defendant of that right of way, but they found themselves unable to agree upon the sum to be paid as the consideration for such conveyance. Finally, on the 16th day of January, 1888, they entered in the written agreement which is now sought to be enforced in this action. The agreement recited that the defendant had agreed to, and was willing to, convey, by a good and sufficient warranty deed, a certain right of way, as then laid out and existing, from the land of the plaintiff to the Goshen and Deckertown turnpike to the plaintiff, and that the plaintiff had agreed to take the said right of way, and to pay the defendant a valuable consideration therefor, and that the parties were unable to agree upon the consideration to be paid and received for such conveyance. Then the parties agreed to submit such difference between them, respecting the consideration to be paid for such right of way by the plaintiff to the defendant, to the arbitrament of three persons named in the agreement, and mutually agreed that the award to be made by such arbitrators should in all things be well and faithfully kept and observed by them, and each of them. There were provisions in the agreement which are immaterial here, as they have all been satisfied. The arbitrators made and signed an award; and the defendant refused to abide by it, and refused to execute the conveyance under the agreement. The cause was tried before a judge without a jury; and he found all the facts in favor of the plaintiff, and awarded a judgment for specific performance, which has been entered, and from which the defendant has appealed.

The enforcement of the performance of contracts is a well-recognized branch of equity jurisprudence; but whether the power of the court will be exerted in any given case rests in the sound judicial discretion of the court, and cannot be invoked, as matter of right, by either party to the agreement. The great and paramount object of the courts is the attainment of justice; and they will not interfere to compel a specific performance of a contract except in cases where it is equitable so to do. But where a contract respecting real estate is fair in all its parts, and unambiguous in its terms, and where it is certain, and for a fair and adequate consideration, and is free from fraud or mistake, and is capable of enforcement, it is as much a matter of course to command its execution, and enforce its performance specifically, as it is for courts of law to give damages for its violation. The case is plain. The parties, by the recital in their written contract, recognize and recite a right of way, laid out and existing, and an agreement to convey the same. It led to the plaintiff’s land, and was the only mode of access thereto at that time. The defendant was willing to sell and convey such right of way, and the plaintiff was willing to buy the same. They differed only upon the price, and the mode they adopted to fix and settle the consideration was equivalent to a liquidation of the same by themselves, and was equally obligatory upon them. There was no fraud, and no mistake or misapprehension; and it is eminently equitable to afford the plaintiff a means of ingress and egress to his land which he secured by his agreement with the defendant. The judgment should be affirmed, with costs.  