223 A.D. 721 | N.Y. App. Div. | 1928
Final judgment modified by striking therefrom the provision with reference to specific performance and by directing that plaintiff have judgment against defendant in the sum of $10,000, with interest from September 25, 1925, the date of the judgment, together with the costs of the action as taxed by the clerk of the court, and as so modified unanimously affirmed, without costs. In an action for specific performance where, as here, it is determined that specific performance is impossible because of the financial inability of the vendee to conform with the terms of the contract, the court has the power to award damages for the breach of the contract by the vendee. In light of the finding that it is impossible for the defendant to perform specifically it is not proper to direct specific performance and, in the event that defendant fails to perform, that plaintiff have judgment for money damages. The case was tried upon the theory that if specific performance could not be had, the plaintiff should recover the amount named in the complaint. There was no amendment in that connection. Plaintiff is, therefore, limited to the amount prayed for. There was ample proof in the case to sustain an award of the sum of $10,000. Present — Lazansky, P. J., Rich, Young, Kapper and Seeger, JJ. Settle order on notice at which time the amount of interest may be determined.
