22 Barb. 255 | N.Y. Sup. Ct. | 1856
The learned justice before whom this cause was tried, as appears from the opinion delivered by him, inclined to think that if the defendant had tendered to the plaintiff such a deed as he Was to give, before the commencement of the action, the defense set up would be valid and sufficient, and the defendant would be entitled to a judgment for a
There was some evidence tending to shoAV that the defendant had failed to perform the contract on his part othenvise than by not giving the deed, but the decision of the cause Avas not placed on the ground of any such default; and the defendant is entitled to have that subject distinctly passed upon by a jury, or the court in place of a jury, at the circuit or special term.
The tender having been made before the answer, although after the suit was brought, the defendant might plead it and have the benefit of it. Such was the rule in equity in like cases under the old system, and 1 do not perceive any good reason Avhy it should not prevail under the code. ( Willis v. Chipp, 9 How. Prac. R. 568. Houghton v. Skinner, 5 id. 420. Beals v. Cameron, 3 id. 414. Lyon v. Brooks, 2 Edw. Chan. R. 110. Brush v. VandenBergh, 1 id. 21. Code, § 177. 1 Barb. Chan. Prac. 140, 141.)
Strictly, a tender wag not necessary to entitle the defendant to a specific performance. An offer in the answer to perform would be sufficient in the place of it, if even that was necessary. The defendant might have sustained an action for that relief Avithout a tender; but the omission of a tender might affect the question of costs. (Stevenson v. Maxwell, 2 Comst. 408.)
My opinion therefore is, that the judgment should be reversed and a new trial granted, Avith costs to abide the event.
Judgment accordingly
T. R. Strong, Welles and Smith, Justices.]