
    Catharine M. Hewison, Resp’t, v. Mary Hoffman, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 1, 1889.)
    
    "Vendor and vendee—Tender of payment.
    Where on the day named in the agreement of the parties for the delivery of the deed, the vendor is unable to perform because of the existence of incumbrances upon the property which defendant was to convey to plaintiff, the latter is excused from making any tender of payment, and is entitled to recover back the amount already paid and the expenses of examining the title.
    Appeal from judgment of this court at trial term in favor of plaintiff for $420.62 damages and costs.
    The action was brought to recover $100 deposited with or paid to defendant by plaintiff on the execution of a contract for the sale of real estate by defendant to plaintiff, and for $186 expended in examining title. The complaint averred that the defendant had failed to perform her contract. The answer alleged non-performance on plaintiff’s part.
    
      Joseph E. Neuburger, for app’lt; Armour C. Anderson (Lewis Johnson, of counsel), for resp’t.
   Daly, J.

On the day named in the agreement of the parties for the delivery of the deed, the vendor, the defendant, was unable to perform because of the incumbrances upon the property, which she was to convey to plaintiff. The existence of those incumbrances at the time fixed in the agreement for the closing of the title was a breach of the agreement on defendant’s part, which put it out of her power to perform and excused the plaintiff from tendering payment. Morange v. Morris, 3 Keyes, 48.

Plaintiff was, therefore, not in default in not attending on the day named with the moneys or mortgage. By reason of the breach by defendant she was then entitled to recover back the $100 paid on signing the contract, and the $186 expended for seaching title; not required to pay or tender anything to defendant then nor subsequently.

The defendant did, at the time named, offer to allow the amount of the incumbrances to be deducted from the cash payment to be made by plaintiff, but as they exceeded the amount of such payment, that offer did not meet the difficulty, so that there would not be any arrangement to that effect between the- attorneys which would bind the plaintiff.

The plaintiff’s attorney asked for an adjournment which the defendant’s attorney refused. Some days after, the plaintiff notified defendant by letter that she would attend at the office of the latter’s attorney at a day and hour named to complete the contract. Defendant sold the property on or before the day named to another party and did not attend, and never offered the plaintiff the title which she was bound to give under the contract. No point can, therefore, be made as to the sufficiency of the alleged tender by plaintiff on that day, because none was necessary then nor before.

The judgment should be affirmed, with costs.

Allen and Van Hoesen, JJ., concur.  