
    Louis Lese, Appellant, v. William M. Lawson, as Executor, etc., of Jacob Lawson, Deceased, Respondent.
    First Department,
    March 15, 1907.
    Vendor and purchaser — specific performance—-when, tender.by vendee not necessary.
    When-a vendor has agreed to convey an. unincumbered title and it is.conceded that an inheritance tax which was a lien upon the property had. not been paid, the vendee is entitled to equitable relief although he omitted to tender perfoi-mañóe on his part, for under- the circumstances tender would have been an idle ceremony. -
    This is true even though the parties he considered ..to have mutually abandoned the, contract;, under the circumstances the vendee in equity is entitled to. recover the earnest money paid .without tender of performance.
    Appeal by the plaintiff, Louis- Lese, from a judgment .of.the, Supreme Court in favor of the defendant, entered, in the office 'of the clerk of-the county of ÍSTew York on. the 11th day of July, 1906; upon the decision -of the court, rendered after a trial at. the Dew-York Special Term, dismissing the complaint upon the-merits and directing that the notice of pendency of action herein be canceled of record.
    
      John D. Connolly, for the appellant.
    
      James S. Lawson, for the respondent.
   Scott, J.:

Action by a vendee of real estate for specific performance. The plaintiff appeals from a judgment dismissing the complaint. The contract was made on ■ March 1, 1905, and provided for a conveyance of the property free from incumbrance. The title was agreed to be closed on March 31, 1905, but the date of .closing was adjourned to April twenty-fifth. In the meantime it had come to the knowledge of the vendee that the inheritance tax had not been adjusted and paid on the estate of defendant’s testator, and there appears to have been some conversation between the attorneys for the parties relative to the tax and the time at which it could be paid, but their testimony does not agree as to ■ what actually took place. On the adjourned day the defendant attended at the' time and place fixed for closing the title, but he was not then in a position to comply with his contract because the inheritance . tax still remained Unpaid, and constituted an incumbrance upon the property. The plaintiff did not appear, very probably because he knew that the defendant could not make a conveyance free from incumbrance. Nothing was done by either party for some time, neither making a tender of performance to the other, so that neither put the other technically in default. Plaintiff’s attorney says that he was waiting for the inheritance matter to be adjusted, and that vendor’s attorney had promised to notify him when that had been accomplished. "Vendor’s attorney denies that he made any such promise, and he and his client appear to have ignored, plaintiff and his attorney. In February, 1906, plaintiff, learning that defendant had contracted to sell the property to some one else, began this action.

We are of opinion that, in any view of the facts, the plaintiff Was entitled to some relief in equity. The defendant never tendered performance, and plaintiff should not be denied all relief because he omitted to make a tender of performance which would, of necessity, have been futile because, upon the conceded facts, the vendor on the day fixed for closing the title • could not perform. It would have been an idle ceremony to have gone to the appointed place and made a formal tender. Looking at the evidence from a point of view most favorable to the defendant, the utmost that can be-said is that the parties by their acts mutually abandoned the contract, but even in this view the plaintiff is entitled to some relief. It would be highly inequitable that defendant should, be permitted to retain the money already paid down upon a contract of which he never tendered performance and which he could not have fulfilled if demand had been made upon him.

The judgment should he reversed and a new trial granted, with costs to appellant to abide the result.

Patterson, P._ J., Laughlin, Houghton and Lambert, JJ., concurred.

Judgment reversed, new trial ordered, costs-to appellant to abide event. Order filed., . .  