
    SUPREME COURT.
    Harriet F. S. Wheeler and another agt. Philip Braender.
    
      Practice — Payment into court — Specific performance—When issue raised by the pleadings, must be disposed of before specific performance will be decreed.
    
    Where an issue is raised by the pleadings, in an action for damages, as to the proper construction of an agreement, specific performance cannot be decreed, without disposing of this issue, on payment by defendant of money/into court to secure plaintiff from the damages.
   Haight, J.

—The defendants move for leave to pay into court such a sum: of money as to the court may seem proper to secure the plaintiff from the damages alleged in the complaint ; and upon- the paying into court of such money that then specific performance of the contract alleged in the pleadings be adjudged;

I am of the opinion that this court has not the power, upon motion, to grant the relief asked for; that a trial is necessary. It is not a case in which the action can be severed under section 511 of the Code. I know of no other provision providing for the disposing of issues upon motion, except in cases of sham and frivolous pleading. In this case there is an issue raised by the pleadings as to the proper construction to be given to the agreement of Ward Wheeler to loan $20,000. Specific performance cannot be decreed without disposing of this issue. This issue is separate and distinct from the one for damages, and can be disposed of only by trial;

Motion denied, with ten dollars costs."  