#### Mytton Maury, Resp’t, *v.*Alfred B. Post, App’lt.

*(Supreme Court, General Term, Second Department,*

*Filed February 10, 1890.)*

1. Specific performance-When will be decreed.

Where a contract respecting real estate is fair in all its parts and unambiguous in terms, and where it is certain and for a fair consideration, is free from fraud or mistake and capable of enforcement, it is a matter of course to command its specific performance.

2. Same—Arbitration.

The parties entered into a written agreement which recited that defendant agreed to convey and plaintiff to take a certain existing right of way to the latter’s premises (and which was his only mode of egress), but were unable to agree upon the consideration, and therefore agreed to submit the question to three arbitrators and abide by their award. Defendant subsequently refused to abide by the award or to execute a conveyance. *Held,*that the mode adopted to settle the consideration was equivalent to a liquidation of the same by themselves, and that specific performance should be decreed.

Appeal from judgment directing a conveyance of real estate.

*Harrison W. JS’anny,*for app’lt; *W. D. Mills,*for resp’t.

Dykman, J.

It was the object of this action to enforce the specific performance of a written contract between the parties, drawn and executed for a double purpose.

The plaintiff was the owner of a tract of about 217 acres of land which was surrounded on three sides and a portion of the fourth side by swamp. The defendant was the owner of lands lying between the land of the plaintiff and the highway, and there was a lane and way, fixed and defined, across the land of the defendant from the Goshen and Deckertown turnpike to the land of the plaintiff. The lane was fenced a part of the way and unfenced for the remainder.

Negotiations were opened between these parties for a conveyance to the plaintiff by the defendant of that right of way, but they found themselves unable to agree upon the sum to be paid *828as the consideration for such conveyance. Finally, on the 16th day of January, 1888, they entered in the written agreement which is now sought to be enforced in this action.

The agreement recited that the defendant had agreed to and was willing to convey by a good and sufficient warrantee deed a certain right of way as then laid out and existing from the land ' of the plaintiff to the Goshen and Deckertown turnpike, to the plaintiff, and that the plaintiff had agreed to take the said right of way and to pay the defendant a valuable consideration therefor, and that, the parties were unable to agree upon the consideration to be paid and received for such conveyance.

Then the parties agreed to submit such difference between them respecting the consideration to be paid for such right of way by the plaintiff to the defendant to the arbitrament of three persons named in the agreement, and mutually agreed that the award to be made by such arbitrators should in all things be well and faithfully kept and observed by them and each of them.

There were provisions in the agreement which are immaterial here as they have all been satisfied.

The arbitrators made and signed an award, and the defendant refused to abide by it, and refused to execute the conveyance under the agreement.

The cause was tried before a judge without a jury, and he found all the facts in favor of -the plaintiff, and awarded a judgment for specific performance, which has been entered and from which the defendant has appealed. 1

The enforcement of the performance of contracts is a well recognized branch of equity jurisprudence, but whether the power of the court will be. exerted in any given case rests in the sound judicial discretion of the court and cannot be invoked as matter of right by either party to the agreement.

The great and paramount object of the courts is the attainment of justice, and they will not interfere to compel a specific performance of a contract, except in cases where it is not equitable so to do.

But where a contract respecting real estate is fair in all its parts and unambiguous in its terms, and where it is certain and for a fair and adequate consideration, and is free from fraud or mistake, and is capable of enforcement, it is as much a matter of course to command its execution and enforce its performance specifically as it is for courts of law to give damages for its violation.

The case is plain. The parties by the recital in their written contract recognize and recite a right of way, laid out and existing, and an agreement to convey the same. It led to the plaintiff’s land, and was the only mode of access thereto at that time. The defendant was willing to sell and convey such right of way and the plaintiff was willing to buy the same. They differed only upon the price and the mode they adopted to fix and settle the consideration was equivalent to a liquidation of the same by themselves and was equally obligatory upon them.

There was no fraud and no mistake or misapprehension, and it *829is eminently equitable to afford the plaintiff a means of ingress and egress to his land which he secured by his agreement, with the defendant.

The judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.