James B. Murray, Respondent, v. Harbor and Suburban Building and Savings Association, Appellant

James B. Murray, Respondent, v. Harbor and Suburban Building and Savings Association, Appellant. Specific performance of a contract to convey real property — when enforced, although the payments prescribed by the contract have not been made—reasonable notice to perform — equitable relief, where there is no remedy at law, not defeated because no tender is made — the tender affects only the costs. In an action brought to compel the specific performance of a contract, by which the defendant agreed to convey to the plaintiff certain real estate upon the payment of $800 in installments, which contract provided that in case of default in any- of the stipulated payments for a period of thirty days the contract might be terminated at the option of the defendant-and that thereupon all payments previously made by the plaintiff should be forfeited to the defendant as liquidated damages, it appeared that the plaintiff made the required payments at the stipulated periods for about a year, and thereafter continued to make the stipulated payments 'at irregular intervals until he had paid §440', together with interest on the unpaid balances. Such payments were received by the defendant without apparent protest or objection and the contract was treated by the parties as in full force and effect. October 22, 1902, the plaintiff tendered the unpaid balance of the purchase price, but the defendant refused to receive the same, alleging that it had elected to terminate the contract, and on October 24, 1902, it gave a written notice of such termination to the plaintiff. Meld, that a judgment decreeing specific performance of the contract should be affirmed; That the defendant could not, under the circumstances, terminate the contract without first affording the plaintiff a reasonable time in which to perform; That the fact that the plaintiff had not strictly complied with his contract and was, therefore, without remedy at law furnished an adequate reason for granting him equitable relief; That the fact that, at the timé the plaintiff made his offer to pay the amount of the unpaid purchase price, the money was not produced and tendered, did not ■ defeat the plaintiff’s right to relief. Semble, that in an action for specific performance, the failure to make either a tender or a demand -before suit affects only the question of costs. ■ Appeal by the defendant,, the. Harbor and Suburban Building and Savings Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of March, 1903, upon the decision of the court, rendered after a trial at the Kings County Special Term, directing the specific performance of a contract for the-sale of real estate. Alexander S. Bacon, for the appellant. Charles I. McBurney, for the respondent. [MAJORITY — Hirschberg, P. J. :] Hirschberg, P. J. : By the written contract'the defendant agreed to convey to the plaintiff certain real estate upon the payment of $800 in installments. In case of default in any of the stipulated payments for a period of thirty days the contract provided for its termination át the option of the defendant, and thereupon all payments previously • made by the plaintiff were declared forfeited to the defendant as liquidated damages. The plaintiff made the required payments at the stipulated periods for about a year after the execution of the contract, and thereafter continued to make such payments at irregular intervals, until he had paid $440 in all, together with interest on the unpaid balances. Such payments were received by the defendant without apparent protest or objection, and the contract was treated by the parties as in full force and valid. On October 22,1902, the defendant was offered, on behalf of the plaintiff, the unpaid balance of the purchase price, with interest, but refused to receive the same, alleging that it had elected to terminate the contract, and on the 24th day of October, 1902, written notice of such termination was given by the defendant to the plaintiff. The trial court found upon sufficient evidence that the defendant stated to the plaintiff, through one of its officers, during the period of default, that no advantage would be taken of the plaintiff’s default in the making of the payments; that no notice of intention to declare a forfeiture of the contract was given by the defendant prior to the actual attempt at cancellation referred to in the written notice finally given as herein stated, and that the plaintiff was ready and willing to pay the purchase price upon receipt of a deed of the property. A judgment of specific performance was decreed. The main point presented by the appellant upon the appeal relates to the sufficiency of the tender. The money was not produced and tendered to the defendant at the time the offer was made on the plaintiff’s behalf to pay the amount of the unpaid purchase price, and the learned counsel for the appellant accordingly insists not only that an actual tender is an essential precedent to the maintenance of the action, but that the tender must be kept good by the payment of the money into court. The cases cited in support of the contention relate wholly to actions in which it is sought to destroy the lien of mortgages, and have no controlling application to the case at bar. In an action for specific performance a failure to make either a tender or demand before suit would affect only the question of costs. (Stevenson v. Maxwell, 2 N. Y. 408 ; Bruce v. Tilson, 25 id. 194 ; Freeson v. Bissell, 63 id. 168.) The offer to pay the purchase price made in good faith as established upon the trial was sufficient to put the defendant in default and to justify a court of equity in relieving the plaintiff from the large loss which he wjould necessarily suffer from a forfeiture of the contract. The defendant cotild not terminate thé contract under the circumstances of the case without first affording the plaintiff a reasonable time in which to perform. (Cythe v. La Fontain, 51 Barb. 186 ; Toplitz v. Bauer, 161 N. Y. 325, 333.) Clearly, as the parties have treated the contract, time was not of its essence. It would be unconscionable to permit the defendant to keep both the money and' the property. The fact that the plaintiff had not strictly performed his part of the contract according to its precise terms, and so was without remedy at law, furnishes an adequate reason for the granting of equitable relief according to the actual merits of the case; and the remedy by specific performance; being discretionary, a court of review should not .interfere with a judgment which grants the relief in a proper case where neither hardship nor injustice results to the defeated' party. (Day v. Hunt, 112 N. Y. 191.) The judgment should be affirmed. All concurred. Judgment affirmed, with costs.