
    Barney Jacobson et al., Plaintiffs, v. Jacob Rechnitz, Defendant.
    (Supreme Court, Kings Special Term for Trials,
    January, 1905.)
    Specific performance — Sufficiency of complaint.
    Where, in a suit for specific performance of a contract to convey real estate or, if that turn out on the trial to be impossible, for other equitable relief if any there be, it appeared that defendant had agreed to procure the cancellation of a lease that was on the property before a day certain and. that the lessee would vacate before that time, the fact that the cancellation of the lease must be by act of the lessee does not make the complaint bad.
    Suit for specific performance; complaint dismissed for not stating a cause of action: motion for a new trial.
    
      Rose & Putzel for plaintiffs.
    Max H. Newman for defendant.
   Gaynor, J.:

All of the complaint that' is material is tiiat the defendant, in a written agreement to convey a plot of land to the plaintiffs on September 30, 1902, agreed that on sixty days’ notice from the plaintiffs he would procure a cancellation of a lease that was on the property on or before March 1, 1904, and that the lessee would vacate by that time; that it is within his power to carry out the said agreement, but that he refuses to do so, although such notice was given to him. The complaint also alleges that the plaintiffs purchased the property to occupy it "for business purposes, and that they cannot get adequate damages at law for the breach. There are allegations of things told the plaintiffs by the lessee, and else, that should have been omitted.

This is a case for specific performance,, or, if that turn out on the trial to be impossible, for other suitable equitable relief if there be any. That the cancellation of the lease must be by the- act of the lessee does not make the complaint bad, for the defendant has agreed to get the cancellation, and may be able to do so, and presumably is (Bennett v. Abrams, 41 Barb. 619).

The motion is granted.  