#### Rosie Buxbaum, Respondent, *v.*Miriam C. Devoe, Appellant.

Second Department,

January 10, 1908.

Real property — vendor and purchaser — agreement to give possession-performance not decreed when premises occupied by tenants.

A vendor, who has contracted to give actual possession of lands on the day of passing title, cannot compel specific performance if his tenants in possession refuse to vacate on that date. Equity will not' compel a vendee, entitled to possession, to specifically perform, if in order to obtain possession she will be obliged to take the hazard of dispossessing tenants. \

Appeal by the defendant, Miriam C, Devoe, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 21st day of March, *6541907, upon tlie decision of the court rendered after a trial at the -Westchester Special Term.

*Ralph Earl*Prime, *Jr.,*for the appellant.

*F. X. Ponoghue,*for the respondent.

Miller, J.:

The vendor under a contract of purchase and sale brings this action to compel the vendee to specifically perform the contract. The contract provided that the deed and possession of the premises, should be delivered on September 1, 1905. The plaintiff made a fender of a deed on said day, but was not in position to deliver actual possession of the premises for the reason -that they were in the occupancy of tenants of the plaintiff. Because of the plaintiff’s failure to deliver possession the defendant refused- to complete tlm purchase. I think-there can be no doubt that *the possession*referred to in the contract of purchase and sale meant actual, not simply constructive, possession. The defendant was not obliged to perform • on her part unless she could get both the deed and possession of the property, and she certainly was not obliged to take the hazard'of dispossess proceedings against the tenants. The trial court found' “That prior to the first day of September, 1905, the defendant •notified said tenants that she was not going to buy said property and that they need not move from said premises,” and it is claimed that the defendant cannot take advantage of the situation resulting from her own act. One of said tenants did testify on direct examination to a conversation with the defendant substantially as found; but upon cross-examination she testified as follows, namely: “ I suppose I did tell her” (meaning the defendant) “in substance ‘We cannot move by the 1st of September,’ and Mrs. Devoe did sáy in answer to that, ‘ Well now if I cannot get this house by the 1st of September I don’t want it.’ ” It clearly -appears from the entire testimony of the witnesses who Avere sworn on the subject that the defendant was desirous of getting possession of the property on the first of September; that she so informed the tenants, who told her that they could not give possession at that time, Avhereupon she said she did not -want the -property unless she could get possession. It cannot be said, therefore, that the plaintiff’s failure to deliver possession *655was due to any act of the defendant; and as the parties expressly stipulated for possession on a stated day, equity should not decree specific performance now.

Woodward, Jenks, Hooker and Rich, JJ., concurred.

Judgment reversed and new trial granted, costs *to*abide the final award of costs.