#### Morris Cohen, Respondent, *v.*Samuel Parnass and Rebecca Meryash, Appellants.

(Supreme Court, Appellate Term,

April, 1905.)

Option — To exchange property ou perfecting title — Time limit.

Where, on examination, the title to premises No. 169 M. street agreed to he sold to plaintiff was found to be imperfect and in an agreement to substitute No. 173 M. street it was provided that he should have the option on ten days’ notice in writing, after the perfecting of the title to No. 169, to exchange a conveyance of No. 173 for a conveyance of No. 169, he was entitled to ten days after notice of the perfecting of the title to No. 169 in which to exercise and communicate his option to make the exchange and a reasonable time thereafter to make tender.

Appeal by defendants from a judgment of the Oily Court of the city of Few York.

Johnston & Johnston (Edward W. S. Johnston, of counsel), for appellants.

Paul Hellinger (Henry C. Burnstine, of counsel), for respondent..

*99Leventritt, *J.*

This is an appeal by the defendants from a judgment entered on the direction of a verdict in favor of the plaintiff.

The material facts are undisputed. On December 24, 1901, the defendants agreed to sell plaintiff the premises Ho. 169 Monroe street. On examination the title was. found, to be imperfect, and on February 24, 1902, the parties, by a proper instrument, agreed to substitute the premises Ho. 173 Monroe street. The clause of this agreement on which tins action depends reads as follows: “ It is also further agreed that the party of the second part shall have the option on ten days’ notice in writing after the title of Ho. 169 Monroe Street shall have been perfected, before the parties of the first part shall sell or convey the. same to any other purchaser, to exchange a conveyance of Ho. 173 Monroe Street for a conveyance of Ho. 169 Monroe Street, subject to the same amount of first mortgage, and with a like second mortgage to that on 173 Monroe Street. Should the parties of the first part, however, fail to carry out this agreement last mentioned, then they shall pay to the party of the second part the sum of five hundred dollars ($500) as liquidated damages.”

Title to Ho. 173 Monroe street passed under this agreement. Thirteen months later the defendants> under date of March 21, 1903, sent the plaintiff the following notice: “ Sir.— Please take notice that the title'to Ho. 169 Monroe Street has been perfected.” Three days thereafter, that is March 24, 1903, letters were sent to the defendants and to their attorneys notifying them that the plaintiff, the then owner of Ho. 173 Monroe street, “desires to exchange said premises for the premises Ho. 169 Monroe Street” in accordance with their notice and pursuant to the agreement of February 24, 1902, and asks them to “set a date for such exchange of title.”

The letters were received but not answered; they were ignored. On April 2, 1903, being the twelfth day after the notice of March twenty-first, the plaintiff made a formal demand of a deed of Ho. 169 Monroe street, tendering one of Ho. 173 Monroe street in return. Much is made of the *100question of tender, but it is not very material in our view of the case, especially as we are agreed that the plaintiff’s tender was sufficient, and that the defendants’ flat refusal relieved him of the necessity of either keeping it good or preserving the deeds in an unmutilated form in order to enable him to maintain his action for damages under the agreement. A different question might be presented had the plaintiff sued in specific performance.

There is no doubt that under the agreement of February 24, 1902, time was of the essence of the contract. The question is to what did the time relate. Did the plaintiff have ten days after notice that the title had been perfected to exercise and communicate his option to exchange the property and a reasonable time thereafter to make tender, or was he required within ten days after notice to make the tender? The agreement is inartistically drawn and is subject to various constructions. We are of the opinion, however, that the former construction is expressive of the real intent of the parties. As a concession the plaintiff took a piece of property other than he had. originally contracted for. As an inducement for the taking the: defendants agreed to give him an opportunity after the title had been cured to secure the subject of his original bargain. The plaintiff would reasonably and naturally want . a space of time after notice^ to determine for himself whether the title had been in fact cured. It was not contemplated that he should accept the defendants’ word for it. Ten days’ time is not excessive. It is not to be assumed that the plaintiff was expected to make his examination, clear his property of subsequent incumbrances,, and tender his deed within the short space fixed in the agreement.

Without going into refinements in analyzing the rather uncertain terms of the contract, we are at least satisfied that any construction that would not give the plaintiff ten days to exercise his option would do violence to the intent of the parties as we gather it from the surrounding circumstances.

Scott and G-keeebaum:, JJ., concur.

Judgment affirmed, with costs.