9 Johns. 336 | N.Y. Sup. Ct. | 1812
There is no sufficient breach assigned. The plaintiff or his counsel, were to devise the further assurance; and after having done so, the plaintiff was bound to give notice thereof to the defendant. If he devised a fine to be levied, he ought to have stated it so to the defendant, as was done in the cases of Pel v. Cally, (1 Leon. 304 ) and of Goldney v. Curtise; (1 Bulst. 30.) or if he devised and required a release, or a bargain and sale, he should also have specified it, as was done in Wye and Throgmorton's Case. (2 Leon. 130.) Whatever the further assurance might be, it must have been reasonably devised, and not differing from the nature and purport of the original bargain. As no particular assurance is specified in the covenant, and none specified by the plaintiff, the defendant could not know what assurance was required. If an assurance in pais be advised, the grantee is bound to present it, or give due notice of the nature of it, to the defendant, and allow him a reasonable time to consider of it; lor the covenant was, that the defendant should make, or procure, such other assurance as the grantee, or his counsel, should advise. That these steps were requisite to entitle the grantee to his action on the covenant, was clearly held by the court of C. B. in Bennd's Case. (Cro. Eliz. 9.) Judgment must, therefore, be rendered for the defendant.
Judgment for the defendant.
