
    Leon Dwork, Appellant, v. Harris Weinberg, Respondent.
    Second Department,
    June 14, 1907.
    Heal property — vendor and purchaser — default by vendee.
    A vendee of lands who does not appear at the time and place for the delivery of the conveyance until an hour after the time set and after the vendor who was there and’ waited nearly an hour has departed, and when the conveyance is locked in the office safe and no one is present authorized to close title, is in default and cannot recover the earnest money paid. 1
    The fact that at the time set for passing title the vendor had not yet procured a conveyance correcting a clerical error in a prior deed does not excuse the ' vendee’s default.
    The foregoing rules are applicable to actions at law to recover earnest money, as well as to suits in eguity for specific performance.
    Appeal by the plaintiff, Leon Dwork, from a judgment of^the Municipal Court of the city of New York in favor of the defendant, rendered upon the decision of the court after a trial without a jury in an action to recover damages for breach of contract.
    
      Jacob L. Holtzmann, for the appellant.
    
      Charles J. Ryan, for the respondent.
   Gaynor, J.:

This is an action to recover $500 paid by the plaintiff to the defendant on a contract of sale of- a lot of land by the defendant to him. The contract day, i. 6., for the delivery of the conveyance, was August 9th at 5 o’clock p. m. at the office of the defendant’s attorney. The defendant was there, and having waited until nearly 6 o’clock left. The plaintiff came nearly an hour late, and there being no one present who had charge of the matter came back at about 8 o’clock. A clerk of the attorney was there in charge. The deed of conveyance was locked up in the office safe, and he had no access thereto. He told the plaintiff that he (the plaintiff) was in default, that there was no one there, then to close the title, and that there was no use waiting. The next day all offices were closed in that ‘ community because of a Jewish holiday, and nothing could be done. . Next day the defendant tendered a good deed of conveyance, hut it. was rejected by the plaintiff on the ground that- it was too late, This action was commenced after-wards. On these facts, supported' by the evidence, and which the municipal justice presumably found, the defendant was not in default, but the plaintiff was.

' • There are other facts, b.ut they do not change, the result, In the deed of conveyance by which the defendant got the property there was a clerical error in the description, the word “ easterly ” being used for “ westerly.” This was. discovered by the attorneys-for the parties one. of two days before the deed day in the searching of the title, and the attorney for the defendant at the request of the attorney for the plaintiff- set about getting a correction deed.

It was given by the defendant’s grantor, but had not yet been obtained at.the deed hour, i. e., the contract time for the passing of title. It Was delivered next day. Although, the defendant did not have it at the-deed hour, that does not alter the fact that the plain-' tiff made default by not being present and tendering performance. If the defendant had himself done something • which made performance by him impossible, or given notice in advance that he would not convey, a tender by the plaintiff would not have been necessary;. the. law would excuse it.(Ziehen v. Smith, 148 N. Y. 558; Campbell v. Prague, 6 App. Div. 554; Higgins v. Eagleton, 155 N. Y. 466); but that is not this'cáse. The getting of the correction deed was a mere formality, and the defendant might have . got it on the contract day for passing the title if the plaintiff had been present and refused an adjournment. ■

The rules stated in the foregoing are' applicable ■ to actions at law as. well as in suits for specific performance. The decisions cited above were all in actions at law like the present one founded on an alleged- breach of the contract to convey.. Tlie decision in Zorn v. McParland (11 Misc. Rep. 555) that the said rules cannot be applied in an action at law like the present one unless the defendant pleads by answer for a specific. performance seems to , rest on no principle and is not consistent with the authorities, already cited.

The judgment should be affirmed.

Hirsohberg, P. J., Woodward, Jerks and Miller, JJ., concurred.

Judgment, of the Municipal Court affirmed, with costs.  