
    Francis W. Jencks, App’lt, v. Edward Kearney et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1891.)
    
    Specific Performance—Laches.
    At the time for closing a contract for the sale of land the plaintiff requested a postponement on the ground that there was a person in possession of the premises, which was refused, but an offer made to put him in possession on completion of the contract. Nothing further was done for four years and until the land was sold to another person. Held, that the delay was too great for plaintiff to insist on specific performance of the contract.
    Appeal from judgment of special term dismissing complaint.
    
      John H. V. Arnold, for app’lt; Chas. F. MacLean, for resp’ts.
   Van Brunt, P. J.

This action was brought in Januáry, 1890,. to enforce specific performance of a contract made between the plaintiff and the defendant Kearney for the sale of certain premises in the city of New York, which contract was to be closed at the office.of one Bailey at the Oriental Bank building, corner of Canal street and the Bowery, on the 26th of September, 1885, at 12 o’clock noon, when and where simultaneously with the delivery of the deed a purchase money mortgage of $15,000 was to be-delivered and $8,500 in cash to be paid.

Upon the trial of the case the plaintiff testified that a few days before the time of the closing of the contract he saw the premises-in question being used as a vegetable garden of some sort; that he attended at the office of Mr. Bailey at the time fixed in the-contract and stated to Bailey that he had found a party in possession of the premises, but what rights the said person had in and to the premises he had been unable to learn, and requested a postponement of the time of closing the contract for a few days. The attorney was unwilling to do so because of the instructions he had received from his client. The plaintiff ■ stated that he was unwilling to take title with another party in possession. The attorney’s answer was that if he would pay for the property they would put him in possession afterwards. The matter was left there and no further conversation was had about the property.

The plaintiff was asked, amongst other things, as to the conversation he had had with this party he found in possession, which was ruled out by the court as immaterial, and the plaintiff duly excepted.

The plaintiff did nothing in respect to the property until after it had been conveyed by the defendant Kearney to the defendant King, when this action was brought in 1890 for the specific performance of the contract made in 1885, the conveyance to King being claimed not to have been bona fide.

The court dismissed the complaint, and from the judgment thereupon entered this appeal is taken.

In the conclusion arrived at by the learned court who presided at the trial of this action we do not think any error was committed. The plaintiff undoubtedly had a right, finding some person apparently in possession, to a reasonable time to ascertain the rights of this party and whether he was holding adversely to the defendant Kearney, his proposed grantor. But after such reasonable time had elapsed for the purpose of ascertaining these facts, it became necessary for the plaintiff, in order to put the defendants at fault (if there was in reality any adverse possession, or possession inconsistent with the right of the defendant Kearney to put the plaintiff in possession), to tender performance of the contract on his part upon condition that he be put in possession of the property. But as the record shows, upon the mere statement that he saw somebody upon the premises as to whose right he had no knowledge or information, he refused to complete and did nothing further until more than four years afterwards, when he brought this suit, having learned that the defendant had conveyed the property.

We do not understand that by the recording of a contract for the sale of real estate a perpetual Us pendens can be created. Even if time was not of the essence of the contract, certainly four years was too long to allow it to remain without ever offering to perform.

It does not appear that there was any tender whatever made to perform on the part of the plaintiff on the day in which he had the conversation with Bailey. On the contrary the request was for adjournment, and not a tender or offer to perform upon the part of the plaintiff.

Under all the circumstances, therefore, we are of opinion that too long a time elapsed for the plaintiff now to insist that the contract should be specifically performed.

Without passing upon any of the other questions involved, we think the judgment should be affirmed, with costs.

Barrett and Andrews, JJ., concur.  