#### GEORGE BUESS, Respondent, *v.*GEORGE KOCH, Appellant.

*Demurrer*— Contract *of sale*— specific *performance*— when *ordered, notwithstanding fa/iture of plaintiff to tender deed*— Proper *for judgment*— sufficient, *when approprriate to, though not covering all required in a pn'oper judgment.*

Appeal from an order overruling a demurrer to the complaint of the plaintiff.

The complaint set out an agreement made by the parties on the 1st day of March, 1870. It contained a recital that the defendant had entered into an agreement with George Prager, by which he had become bound to purchase certain premises on Rivington street, in the city of New York, for the sum of $15,000, and at his request, the plaintiff had consented to take his place and perform his covenants with Prager; and had further agreed to alter the building upon, the land into a shop suitable for carrying on the cabinet making business, and lease tbe premises to tbe defendant for 'five years from tbe first day of tbe following month of May, and then to convey them to him. Tbe premises were then, by tbe terms of tbe agreement, leased and demised to tbe defendant for such term of five years, at tbe yearly rent, payable quarterly, of ten per cent on them cost, and tbe expenses of their alteration.

It was then covenanted that, on or before tbe expiration of tbe term of five years, tbe defendant would well and truly pay to tbe plaintiff “tbe said consideration of $15,000, and also tbe cost and expense of altering tbe building as aforesaid, upon tbe said Buess executing to him a good and sufficient deed of tbe said premises, free from ah incumbrances, which deed shall contain a general warranty and tbe usual full covenants.” Tbe plaintiff averred that be altered tbe building and rendered it suitable for tbe business to which it was to be adapted; that tbe defendant occupied it and paid *300tbe rent up to tbe 1st of May, 1875. It was also averred that before that day be gave tbe defendant a notice, in writing, requesting information from bim as to tbe time when be would be ready to complete tbe agreement. To that no reply was made. Tbe plaintiff, after tbe 1st of May, 1875, executed a deed of tbe premises to tbe defendant, and went to bis residence to deliver it, and receive tbe payment agreed to be made, but be failed to find tbe defendant. Efforts were afterwards made by bis attorneys to find tbe defendant for the same purpose, but they proved to be ineffectual. Tbe plaintiff also averred that, on tbe 1st of May, 1875, and even since then, be bad been ready and willing to execute and deliver tbe deed, in conformity to tbe terms of tbe agreement; that tbe alteration of tbe building rendered it unfit for other uses than that of a store, without further changes requiring great expense. Tbe expenses of tbe alterations made amounted to tbe sum of $11,666.04; and for that, with tbe purchase-price to be paid for tbe property, according to tbe terms of tbe agreement, tbe plaintiff demanded judgment.

Tbe defendant demurred to tbe complaint, because it did not contain facts sufficient to constitute a cause of action.

Tbe court at General Term said: “ Tbe complaint failed to show a strict performance of tbe agreement by tbe plaintiff. But it alleged such a state of facts as directly tended to excuse it, and which entitled bim to have tbe agreement specifically performed. He bad so far performed himself as to make tbe alterations in tbe' building and give tbe defendant possession. And be endeavored to fulfill tbe residue of tbe covenants to be performed by bim, by securing an understanding which should designate tbe time when ■that might be done. That proved ineffectual by tbe defendant’s failure to respond. And then tbe deed was executed, and tbe defendant sought for in order to complete tbe agreements ; but all reasonable efforts to find bim proved to be fruitless, and then this action was commenced. If tbe plaintiff was in default as, strictly, be probably was, at law, because he omitted to have tbe deed executed on or before tbe first of May, and tendered on that day at tbe defendant’s residence, it was equitably excused by tbe other acts performed by bim. For that reason a court of equity would not defeat Ins claim to relief, because be too confidingly rebed upon tbe *301expectation that the defendant would meet him, and in good faith co-operate with him in performing the covenants which were to be mutually observed, according to the terms of their agreement. His conduct in failing to do so was inequitable, and he ought not to be allowed to shield himself, by means of it, against the just demand made by the plaintiff, that he should take the property on the terms he had stipulated to perform for it. (1 Story’s Eq. Jur. [9th ed.], §§ 775, 776; *Stevenson*v. *Maxwell,*2 Comst., 409; *More*v. *Smedhv/rgh,*8 Paige, 601; *Leai/rd*v. *Smith,*44 N. Y., 619 ; *Freeson*v. *Bissell,*63 id., 168.) It also appeared that the defendant had had the use and occupancy of the property. And as it has not been alleged that he surrendered its possession when his term expired as a tenant, it may be presumed, as he was to have the property after-wards as its owner, that he still continues to hold it; and for that reason, also, he cannot properly complain of the omission to execute and deliver the deed on or before the first day of May. *(Viele*v. *Troy amd Boston B. B. Oo.,*20 N. Y., 184.)

The prayer for judgment is entirely consistent with the character already attributed to the action. It demands the recovery of the purchase-price of the property and the amount of the expenses incurred in altering the building ; and that, the facts alleged show the plaintiff equitably entitled to recover. If a specific performance shall be decreed, the plaintiff will be entitled to a judgment for the payment of the money the defendant covenanted he should receive, and nothing more nor less than that has been demanded. The fact that all the relief which may be essential to such an action has not been claimed, does not render the complaint so defective as to make it the subject of a demurrer. To avoid that consequence, it is sufficient that the facts constituting an equitable cause of action have been alleged, and that the relief insisted upon is appropriate to, while it may not be all that will be required for a complete or perfect judgment. *{líale*v. *Omaha Nat. Blc.,*49 N. Y., 626, 631, 632.)”

*M. L. Townsend,*for the appellant. *Fcrnfma/n, TrustaTl & Wagner,*for the respondent.

Opinion by

Daniels, J.;

Davis, P. J., and Brady, J., concurred.

Order affirmed with costs, and with liberty to defendant to answer within the usual time, and upon payment of costs, to be adjusted.