
    Jacob Zirinsky, Respondent v. Abram S. Post and William H. Post, Appellants.
    
    Second Department,
    March 26, 1906.
    Contract for sale, of lands—failure,Of vendor to deliver deed, at time set - rr when vendee may recover deposit paid on account.
    When in/an. action to recover a" deposit made on thessigning of a contract , to purchase lands it is shown that the plaintiff was present at the office, where the deed was to be delivered at the time Set therefor, and, tendering the amount due, demanded the deed, which was refused by the person in charge of the office, and, after waiting an hour for the vendor to appear, invested his money elsewhere, hé is entitled to recover his deposit, especially when there •are no equities in favor of the defendants, they having subsequently sold-the ' land at an advanced price. ' -
    Appeal by the defendants, Abram S. Post and another; from a judgment of the Supreme Court in favor of the plaintiff,- entered in the office of the clerk of the County of Kings on the ,25th day of October, 1904, upon the verdict of a jury rendered by direction of the-court, and also- from an order entered in, said clerk’s office .on the 28th day of October, 1904, denying the defendants’ motion for a new trial made upon the minutes,
    
      George Murray Brooks, for the appellants.
    
      Harry Zirn, for the respondent.
   Woodward, J.:

At the close of the evidence both parties asked the court for the direction of,a verdict, thus giving authority for the determination of any facts to the court, and the.verdict is -to have the same effect as though found by a jury. The facts most favorable to the plaintiff must be deemed to have been found, where there is any conflict in the evidence, and these facts are that the plaintiff entered into a contract with the defendants, as executors of the will of the late William Post, for the purchase of three lots of land with the buildings thereon in the borough of Brooklyn. The purchase price was to be $25,400,, $500 on signing the contract, $3,900 in cash on the delivery of the deed, and $21,000 by executing ánd delivering three purchase-money bonds and mortgages for $7,000 each. The deed of the premises it was agreed should be delivered at the office of George Hurray Brooks, Ho." 43 Wall street, Hew York, on the 7th day of January, 1904, at twelve o’clock noon, upon receipt of said payments. The plaintiff was present at the appointed-hour ready, willing and able to perform his contract,, and offered to do so, making a tender of his money to the persons in charge of the office, and demanding the deed, which was refused. He waited at the office a reasonable length of time and the defendants or their attorney not appearing, plaintiff left the office and subsequently invested'his money in another piece of property. He brings this action to recover the $500 deposited upon signing the contract, and the defendants, without ever having tendered the deed, without asking for specific performance of the contract, insist that the judgment in favor of the plaintiff should be reversed, because it is alleged that the defendants' were ready to deliver the deed at an hour subsequent to the time agreed upon within the same day, and after the plaintiff had left the office.

If the defendants presented any equities it might be that the court would be disposed to disregard the exact time, and to hold that a substantial compliance was all that was .necessary; but in the case at bar it is conceded that the defendants subsequently sold the property at an advance in price, and their effort to keep the $500 paid by z the plaintiff, where they are atone in default, hardly calls for any effort on the part of this court to interfere with the judgment, and we find no casé which would warrant such interference. The action is at law ; the equities, if there are any involved, áre all with the plaintiff, and the defendants having stipulated to close the transaction at a particular time, and the plaintiff having appeared prepared to perform his part of the contract, and having waited at the appointed place for an hour — for a reasonable length of time —-and the defendants never having appeared or tendered a deed to the plaintiff, it is clear .that there is no defense to the action to recover the .$500 paid oh account of the purchase, even though it appears from the evidence that the defendants would probably have been prepared to act within a few hours of the appointed time.

The judgment and order appealed from should be affirmed, with ' costs.

Hooker, Gaynor and Rich, JJ., concurred ; Jenks, J., concurred in result.

Judgment and order affirmed, with costs.  