Price against McGown, 10 N.Y. 465

Gardiner, J. The bill in this case was filed to compel a specific performance of a contract for the purchase and sale of land in the city of New-York. There were two agreements. The first made in February, 1834, which was continued by the verbal agreement of the parties until the fifteenth of November, of the same year, at the request and for the benefit of the purchasers. No time was fixed by the memorandum executed by the parties for the performance of this agreement, but by a verbal understanding it was to be executed on the first of May following its delivery.

The complainants were not ready to perform on the day last mentioned, and a negotiation subsequently took place ■between the parties, which resulted, on the ninth of December, in an agreement which the complainants allege to be a mere continuation of the first one above mentioned, and which the defendant in his answer in response to the bill declares to be a new contract, one intended by all parties as a substitute for the former. The answer must prevail unless disproved; it is, however, sustained by Adriance, the only witness examined, and by the intrinsic probabilities of the case.

The last agreement is set forth in the bill and differs from the one originally made, in the premises to be conveyed: of course, in the consideration : in the amount to be collaterally secured, as well as the time of performance. It is, however, immaterial whether the agreement of the ninth of December is viewed as an alteration of the former one, or a substitute for it. It was the only contract in existence, in operation between the parties from the time of its execution—the only one to be performed by them.

This is conceded by the learned vice-chancellor, who has accordingly decreed in' conformity with its provisions. But the answer expressly avers that this agreement was left in escrow with Adriance, to become operative upon the condition that $4,000 should be paid by the complainants on the day of its execution.

Adriance states that as the first contract had expired, he proposed that a new one should be drawn and left in his hands, so that if Reed who was expected to furnish or pay the money should do so on that day, the counterpart should be delivered to the vendors, Wiswall and Price, otherwise to be null and void. The time of payment was thus definitely fixed, as the condition upon which the new agreement should become operative; whether the effect of the contract when established would be according to the construction of the vendees or vendor.

There is no pretence that the condition was complied with on the day appointed for the performance. There was consequently no agreement between the parties. It is true that McDown said that he would notwithstanding receive the money on the day following, and not afterwards, and directed Adriance so to inform Reed, which was done accordingly.

But the payment was not made or offered on the day last mentioned, and I agree with the learned judge who delivered the opinion of the supreme court that the .extension for the performance of the condition was gratuitous and cannot be enlarged beyond the prescribed period, by the act of the court. This will dispose of the case without adverting to the other questions presented.

I place my opinion upon the ground that the inchoate agreement of the ninth of December was a substitute for the one first made; that the condition upon which its validity was made to depend was never complied with by the complainant, and of course, there was no contract which could be enforced against McGfown in equity or elsewhere. The decree of the supreme court should be affirmed. Mason and Taggart, Js., dissented; all the other judges concurring, Judgment affirmed.