Appeal by defendant from a judgment, entered with the Schuyler County Clerk after a decision rendered at a Trial and Special Term of the Supreme Court, and from an order denying a new trial and other relief. Plaintiff brought this action to compel specific performance of an agreement to sell real property. The case was submitted to the Trial Judge upon a written stipulation of fact by the attorneys for the parties entered into after the answer had been interposed. The stipulated facts are: (1) By agreement dated January 3, 1949, plaintiff agreed to purchase and defendant agreed to sell for $6,000 a farm owned by defendant located in Schuyler County; (2) plaintiff entered into possession of the farm; (3) in 1954 a fire destroyed a bam on the farm; (4) defendant received $4,650, as proceeds of a policy of fire insurance issued to her; (5) the premiums in payment of the policy were paid by plaintiff as required by the agreement; (6) plaintiff tendered to defendant the balance due under the agreement, computing such balance by deducting the proceeds from the policy of fire insurance from the total amount due and, upon such tender, demanded a deed; (7) defendant, contending that she was personally entitled to the proceeds of the fire insurance policy, refused to deliever a deed unless plaintiff paid to her the total amount due on the contract, computed without deducting the proceeds of the fire insurance policy; (8) plaintiff paid the amount due as computed by him into court and brought this action for specific performance. Thus, the Trial Judge was requested to determine the ease upon the single question of law—whether, after a fire loss, proceeds paid to a vendor under a fire insurance policy in his name alone, should be credited to the balance due under the purchase agreement, where the vendee is in possession and has paid the insurance premiums as required by the agreement.
