| N.Y. Sup. Ct. | Jun 23, 1890
By a written agreement, dated September 10, 1889, the plaintiff and defendants agreed to an exchange of real properties owned by them respectively in this city. That of the defendants was described as being 25 feet wide, and it is but 24. The plaintiff brings suit to enforce a specific performance, with compensation to her for the deficiency of one foot. There is a divergence in the evidence upon the subject of what was said about the dimensions of defendant’s lot when the contract was executed. From the peculiar mention of its depth in the agreement, in connection with the oral testimony upon defendant’s behalf, I am inclined to conclude that the defendant’s contention upon the point is correct. The defendant’s lot is wholly covered in width by a building, and there can be no doubt that the plaintiff viewed it with particularity enough to be aware of that fact. There are reasons, apparently well established by authority, which, in my opinion, prevent the rendition of a decree, conforming to the relief prayed in plaintiff’s bill of complaint. The foundation of the jurisdiction of this court to decree specific performance is the inadequacy of the remedy at law. Fry, Spec. Perf. § 12, p. 48, with numerous adjudications given in note. In this easel have no doubt that a court of law can afford the plaintiff an adequate remedy through an action for damages. The contract is one for an exchange of realty, and the defendants being unable to perform, by no act of theirs, the inability constitutes a perfect defense in equity. Id. § 658, pp. 389, 390, and note; Beck v. Allison, 4 Daly, 421" court="None" date_filed="1873-04-15" href="https://app.midpage.ai/document/beck-v-allison-6140232?utm_source=webapp" opinion_id="6140232">4 Daly, 421; Sternberger v. McGovern, 56 N.Y. 12" court="NY" date_filed="1874-02-10" href="https://app.midpage.ai/document/sternberger-v--mcgovern-3620528?utm_source=webapp" opinion_id="3620528">56 N. Y. 12. The reason of the rule is that a decree would, in substance, call upon the party to perform a contract which he did not make. In the case at bar, the agreement was for an exchange, the values and money to be paid, specifically fixed, for the barter. To compel the defendants to make compensation in money would for them create an obligation they had never assumed, nor intended to assume. The words of the court in Sternberger v. McGovern, supra, state the principle, and also answer the authorities cited on plaintiff’s behalf: “ The counsel cites numerous authorities showing that, when a vendor is unable to perform the entire contract, the purchaser may, if he chooses,
Decree for the defendants dismissing the complaint, without costs.