Martha Krasnow, Respondent, v. Harry Topp and Others, Appellants

Martha Krasnow, Respondent, v. Harry Topp and Others, Appellants. Second Department, October 16, 1908. Specific performance — allegation that defendant cannot' perform — equitable jurisdiction — money judgment.. Although the complaint in a suit for the specific performance of a contract to-convey lands shows that the houses to be sold encroach upon adjoining lands, a motion to send the case to the jury calendar on the. ground that equitable relief -is impossible is properly denied, for the defendant may p.ut 'himself in a position to perform by acquiring the strip encroached upon. Where at-the trial it appears that'the defendant cannot perform and the complaint asks money damages in the alternative, the court may award them. Appeal by the defendants, Harry Topp and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of King's on the 10th day. of July, 1907, upon the decision of the court rendered - after .a trial at the Kings' County Special Term. Suit by the purchaser for specific performance o*f a contract to convey real property. The contract was to convey a plot 10 feet front on a city street,, with houses, on it. The complaint alleges that the defendant was unable to convey because the houses overlapped and encroached four inches on the adjoining land. It prayed for, Specific performance^ and as an alternative for a money judgment for the amount paid on the contract and the expense of examining the title. A. Wólodarsky, for the appellants. Lehman & Télséy, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: Before any witness was sworn tire defendant moved that the case be sent to the jury calendar for a jury trial. The claim was that the complaint itself showed that the defendant could not perform, and that therefore the case was not of equitable jurisdiction, as specific performance will not be decreed where it is impossible. But it did not appear that it was impossible. The defendant might, for aught that appeared, put himself in a position to perform by acquiring title to the 'four inch strip encroached upon. The case is no different than if the defendant had not owned any of the land he contracted to convey. The motion to send the case to the jury calendar was therefore properly denied; and as at the close it appeared that the' defendant could not perform, the court had the right to give the money judgment prayed for. The judgment-should be affirmed. Jenks, Hooker, Rich and Miller, JJ., concurred. Judgment affirmed, with costs.