98 N.Y.S. 132 | N.Y. App. Div. | 1906
At the close of the evidence both parties asked the court for the direction of,a verdict, thus giving authority for the determination of any facts to the court, and the.verdict is -to have the same effect as though found by a jury. The facts most favorable to the plaintiff must be deemed to have been found, where there is any conflict
If the defendants presented any equities it might be that the court would be disposed to disregard the exact time, and to hold that a substantial compliance was all that was .necessary; but in the case at bar it is conceded that the defendants subsequently sold the property at an advance in price, and their effort to keep the $500 paid by z the plaintiff, where they are atone in default, hardly calls for any effort on the part of this court to interfere with the judgment, and we find no casé which would warrant such interference. The action is at law ; the equities, if there are any involved, áre all with the plaintiff, and the defendants having stipulated to close the transaction at a particular time, and the plaintiff having appeared prepared to perform his part of the contract, and having waited at the appointed place for an hour — for a reasonable length of time —-and the defendants never having appeared or tendered a deed
The judgment and order appealed from should be affirmed, with ' costs.
Hooker, Gaynor and Rich, JJ., concurred ; Jenks, J., concurred in result.
Judgment and order affirmed, with costs.