Frank C. Kohart, Appellant, v. Patrick F. Boyle and Simon Spaide, Respondents

Frank C. Kohart, Appellant, v. Patrick F. Boyle and Simon Spaide, Respondents. Second Department, November 18, 1910. Beal property — contract of sale — specific performance — contract not binding on vendee. A vendee of lands who refused to execute the contract of sale tendered by the vendor unless the term of a mortgage on the premises -was extended cannot maintain an action for the specific performance of the contract, for it lacked mutuality. One cannot enforce a contract not binding upon himself. Appeal by the plaintiff, Frank 0. Kohart, from a judgment of the Supreme Court in» favor of the defendants, entered in the office of the clerk of the county of Kings on the 5th day of January, 1910, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint upon the merits. Henry Escher, Jr., for the appellant. Francis Stockton McDivitt, for the respondents. [MAJORITY — Hirschberg, P. J.:] Hirschberg, P. J.: The action is brougnt to procure ihe specific performance of a contract for the sale of real estate, and we think the record fully justifies the findings which have resulted in a dismissal of the complaint upon the-merits. The parties met at the office of the broker, and the defendants then executed an agreement for. the sale of certain real estate to the plaintiff at a specific price, subject to two mortgages for the sum of $12,250 and $19,250, respectively. The second mortgage, the larger one, was then due and payable, and the plaintiff refused to sign the contract until he could arrange with the holder of such mortgage for an extension of it. The plaintiff failed to procure such an extension, and thereupon sent a letter to the defendant Boyle, stating that he had refused to accept the contract without the extension of the mortgage and suggesting that a new contract be drawn in compliance with the existing conditions. No such contract was drawn, however, and the action is brought on the theory that the plaintiff may now enforce the contract as sighed by the defendants, without regard to the lack of mutuality. His claim is untenable. He cannot enforce a contract which is not binding on himself. In Cagger v. Lansing (43 N. Y. 550) the court said (p. 553) : “ No one will contend that a contract for the sale of land, executed by the vendor, is binding upon the purchaser unless the contract is delivered to and accepted by the purchaser as a valid subsisting contract. A delivery in escrow cannot bind the purchaser, although he verbally promises to perform the condition. Until performance and acceptance by the purchaser, he is at liberty to abandon the contract.” In Lenin v. Dietz (194 N. Y. 376) it was held that specific performance of a contract will be denied in the absence of mutuality of obligation and remedy in both parties to the contract. The judgment should be affirmed, with costs. Woodward, Burr, Thomas and Rich, JJ., concurred. Judgment affirmed, with costs.