Felix J. Duffy, Respondent, v. Timothy Donovan, Appellant

Felix J. Duffy, Respondent, v. Timothy Donovan, Appellant. (Argued February 4, 1873; decided February 11, 1873.) This was an action for specific performance of a contract between plaintiff and Dennis J. O’Donovan. After the contract the premises had been conveyed to the defendant here with knowledge. A judgment decreeing specific performance was affirmed by this court. (46 N. Y., 223.) A motion was subsequently made in this court to resettle the judgment here. The motion was denied “without prejudice to the right of defendant to apply to the Supreme Court to adjust the rights and equities of the parties in respect to taxes charged upon the premises after the contract and paid by defendant, and in respect to interest paid by him upon a $1,500 mortgage which plaintiff by his contract assumed.” The property consisted of vacant lots from which no income was derived. The Special Term, upon motion to adjust the equities of the parties, allowed to defendant the amount of taxes and the interest upon the mortgage paid by him aceru ing after the contract of sale. Held, no error; that the items paid were liens which the plaintiff would have been obliged to pay had he obtained possession; and as he had had the use of the purchase-money while no income had been derived from the premises, he was properly chargeable with such items; that if any income had been derived plaintiff would have been entitled thereto; that plaintiff could not claim to be placed in a better -position than he would have been if the contract had been fulfilled, which would be the result if these allowances were not made; and, that defendant’s payments were not voluntary, as he was bound to protect the title, which in equity he held in trust for defendant. Samuel Hand for the appellant. John H Bergen for the respondent. [MAJORITY — Per Curiam] Per Curiam opinion for reversal of order - of General Term and affirmance of order of Special Term. All concur. Ordered accordingly.