
    (64 App. Div. 508.)
    GOLDMAN v. WILLIS.
    (Supreme Court, Appellate Division, Second Department.
    October 18, 1901.)
    Vendor and Purchaser—Breach op Contract—Tender op Performance.
    An action to recover an advance payment on an executory contract for the sale of real estate for breach of the contract is not maintainable where the plaintiff made no tender of the amount owing, and never requested a performance by the defendant.
    Appeal from municipal court, borough of Brooklyn.
    Action by Morris Goldman against Isabella M. Willis. From a judgment in favor of defendant, plaintiff appeals.
    Affirmed.
    Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, JENKS, and SEWELL, JJ.
    Charles H. Machín, for appellant.
    Ellis L. Aldrich, for respondent.
   PER CURIAM.

This is an action in the municipal court to recover $100, this being the amount of an advance payment upon an executory contract for the sale of real estate, the plaintiff claiming that the defendant is in default in conveying the property. While there was no time fixed in the contract for the final transfer, the evidence is conclusive that there was an understanding that it was to be within a few days of the signing of the contract. The plaintiff never made any tender of the amount due, never asked the defendant to perform, and under the rule laid down in Ziehen v. Smith, 148 N. Y. 558, 560, 42 N. E. 1080, the judgment dismissing the complaint upon the merits should be affirmed, with costs.  