Martin, J.
The rule applicable in cases of nonsuit, or where a verdict is directed hy the court, is that in determining the correctness of its decision, the party nonsuited, or against whom a verdict is directed, is entitled to the most favorable inferences deducible from the evidence, and all contested facts are to be treated as established in his favor.
(Rehberg
v.
Mayor, etc.,
91 N. Y. 137;
Weil
v.
D. D., E. B. & B. R. R. Co.,
119 N. Y. 152;
Ladd
v.
Ӕtna Ins. Co.,
147 N. Y. 478, 484.) Therefore, in determining this appeal, the facts most favorable to the defendant must be regarded as established.
On the trial the court determined all the questions involving the validity of the title tendered in favor of the defendant, except that relating to the outstanding mortgage upon the property Ho. 3 St. Luke’s place. It is obvious that the court properly held that the objections, which were actually raised by the plaintiff to the title when offered, were insufficient under the proof to justify the plaintiff in refusing to complete his contract. But the courts below have based their determinations in favor of the plaintiff solely upon the ground that there was a mortgage upon the property on St. Luke’s place, which would have rendered a release by the defendant of the property on Hudson street ineffectual to discharge the alleged
easement existing by reason of the beams of the adjoining building resting in the wall of that house. That objection to the title was first made after the commencement of this ■action. The title to that easement, if one existed, was in the defendant, .who not only offered to release it, but also to remove the beams. Thus the defendant proposed to fully perform his contract by conveying to the plaintiff an absolute title wholly relieved of the easement of which he complained. But it is said he was unable to do so, owing to the existence of a mortgage upon the property. Ho such objection to the title was mentioned by the plaintiff when it was to be passed. If it had then been raised, there is little doubt but the defendant would have procured any release necessary to confer upon the plaintiff an absolute title to the property purchased free from all incumbrances. The plaintiff, on the law day, having made specific objections to the title, which were unfounded, ■could not subsequently raise a new objection, even if it was valid where, as in this case, it was one that could have been obviated by the defendant.
(Benson
v.
Cromwell,
6 Abb. Pr. Cas. 83, 85.) In an action brought by a purchaser of real estate to recover back the purchase price paid on the execution of a contract of sale, to justify his refusal to perform his contract on the ground of a defective title, there must be at least a reasonable doubt as to it, such as would affect its value and interfere with its sale to a reasonable purchaser. The mere possibility that a title may be affected by existing causes which may subsequently develop, is not to be regarded as a sufficient ground.
(Moser
v. Cochrane, 107 N. Y. 35.) The evidence contained in the record renders it manifest that the defendant’s" title to the premises was a marketable one, and that with the proposed releases and the removal of the beams objected to, the plaintiff would have obtained not only a good title free from incumbrances, but one that was free from doubt. In this contract there was no express stipulation making prompt performance, or performance upon the day named, any part of the substance of the agreement. So that, manifestly, time ivas not of the essence of the con
tract. Under these circumstances, with the offer of the defendant by release and removal of the objectionable beams, to make the title to the premises absolutely good, it is clear that the plaintiff was not in a position to insist upon a rescission of the contract, or to recover damages or the purchase price paid by his assignor.
But there is another ground upon which this judgment should be reversed. By the contract the parties mutually agreed that the payment of the unpaid consideration and the transfer of the title should be dependent and concurrent acts. A time and place were mentioned when the agreement was to be performed. The acts of one party were dependent upon the acts of the other. While the defendant tendered a sufficient deed of the premises and offered to perform any and every act necessary to the full and complete performance of the contract upon his part, there is no allegation nor proof that the plaintiff or his assignor offered or tendered performance upon his part, or demanded performance by the defendant.
It is a well-settled rule that to entitle a party to recover damages for the breach of an executory contract of this character, he must show a tender of performance upon his part and a demand of performance by the other party. It must be established in some way that the other party is in default, or that performance or tender of performance has been waived. A' tender of performance may be dispensed with when it appears that the vendor has absolutely disabled himself from performing on his part, but unless that appears a tender of performance by the vendee must be made, if not waived. In this case there was no proof that the defendant waived such a tender, either by words or conduct. Uor was it shown that he was unable to perform the contract upon his part. But the proof was that the defendant, at the time and place mentioned in the agreement, was there, ready and willing to perform the contract and to obviate and remove every objection to the title raised by the plaintiff. Clearly the court was not justified in holding that the defendant was unable to perform the contract upon his part, or that it was impossible for
him to convey a good title, within the rule which dispenses with the necessity of tender and demand in order to work a breach of such a contract. The agreement was not broken by the fact that there was a mortgage upon the property on St. Luke’s place, which, it was alleged, might interfere with the defendant’s i-elease of the easement in the Hudson street house. The mere existence on that day of an incumbrance on tiie property which it was within the power of the vendor to remove, did not constitute a breach of the contract between the parties. The decision of this court in
Ziehen
v.
Smith
(148 N. Y. 558) seems to be decisive of this question. It was there held that the mere fact that, at the time fixed for the concurrent and mutual performance of an executory contract for the conveyance of real estate, there existed a lien or incumbrance upon the property which it was within the power of the vendor to remove, did not relieve the vendee from making a tender and demand of performance, as a condition precedent to the maintenance of an action to recover the money paid on the contract, or for damages as for its breach on the part of the vendor. In that case, as in this, there was no proof that the defendant waived tender or demand. There the alleged obstacle to the performance on the part of the defendant was the existence of a mortgage which was given by a former owner, and upon which a judgment of foreclosure had been entered.
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Martin, J.
The rule applicable in cases of nonsuit, or where a verdict is directed hy the court, is that in determining the correctness of its decision, the party nonsuited, or against whom a verdict is directed, is entitled to the most favorable inferences deducible from the evidence, and all contested facts are to be treated as established in his favor.
(Rehberg
v.
Mayor, etc.,
91 N. Y. 137;
Weil
v.
D. D., E. B. & B. R. R. Co.,
119 N. Y. 152;
Ladd
v.
Ӕtna Ins. Co.,
147 N. Y. 478, 484.) Therefore, in determining this appeal, the facts most favorable to the defendant must be regarded as established.
On the trial the court determined all the questions involving the validity of the title tendered in favor of the defendant, except that relating to the outstanding mortgage upon the property Ho. 3 St. Luke’s place. It is obvious that the court properly held that the objections, which were actually raised by the plaintiff to the title when offered, were insufficient under the proof to justify the plaintiff in refusing to complete his contract. But the courts below have based their determinations in favor of the plaintiff solely upon the ground that there was a mortgage upon the property on St. Luke’s place, which would have rendered a release by the defendant of the property on Hudson street ineffectual to discharge the alleged
easement existing by reason of the beams of the adjoining building resting in the wall of that house. That objection to the title was first made after the commencement of this ■action. The title to that easement, if one existed, was in the defendant, .who not only offered to release it, but also to remove the beams. Thus the defendant proposed to fully perform his contract by conveying to the plaintiff an absolute title wholly relieved of the easement of which he complained. But it is said he was unable to do so, owing to the existence of a mortgage upon the property. Ho such objection to the title was mentioned by the plaintiff when it was to be passed. If it had then been raised, there is little doubt but the defendant would have procured any release necessary to confer upon the plaintiff an absolute title to the property purchased free from all incumbrances. The plaintiff, on the law day, having made specific objections to the title, which were unfounded, ■could not subsequently raise a new objection, even if it was valid where, as in this case, it was one that could have been obviated by the defendant.
(Benson
v.
Cromwell,
6 Abb. Pr. Cas. 83, 85.) In an action brought by a purchaser of real estate to recover back the purchase price paid on the execution of a contract of sale, to justify his refusal to perform his contract on the ground of a defective title, there must be at least a reasonable doubt as to it, such as would affect its value and interfere with its sale to a reasonable purchaser. The mere possibility that a title may be affected by existing causes which may subsequently develop, is not to be regarded as a sufficient ground.
(Moser
v. Cochrane, 107 N. Y. 35.) The evidence contained in the record renders it manifest that the defendant’s" title to the premises was a marketable one, and that with the proposed releases and the removal of the beams objected to, the plaintiff would have obtained not only a good title free from incumbrances, but one that was free from doubt. In this contract there was no express stipulation making prompt performance, or performance upon the day named, any part of the substance of the agreement. So that, manifestly, time ivas not of the essence of the con
tract. Under these circumstances, with the offer of the defendant by release and removal of the objectionable beams, to make the title to the premises absolutely good, it is clear that the plaintiff was not in a position to insist upon a rescission of the contract, or to recover damages or the purchase price paid by his assignor.
But there is another ground upon which this judgment should be reversed. By the contract the parties mutually agreed that the payment of the unpaid consideration and the transfer of the title should be dependent and concurrent acts. A time and place were mentioned when the agreement was to be performed. The acts of one party were dependent upon the acts of the other. While the defendant tendered a sufficient deed of the premises and offered to perform any and every act necessary to the full and complete performance of the contract upon his part, there is no allegation nor proof that the plaintiff or his assignor offered or tendered performance upon his part, or demanded performance by the defendant.
It is a well-settled rule that to entitle a party to recover damages for the breach of an executory contract of this character, he must show a tender of performance upon his part and a demand of performance by the other party. It must be established in some way that the other party is in default, or that performance or tender of performance has been waived. A' tender of performance may be dispensed with when it appears that the vendor has absolutely disabled himself from performing on his part, but unless that appears a tender of performance by the vendee must be made, if not waived. In this case there was no proof that the defendant waived such a tender, either by words or conduct. Uor was it shown that he was unable to perform the contract upon his part. But the proof was that the defendant, at the time and place mentioned in the agreement, was there, ready and willing to perform the contract and to obviate and remove every objection to the title raised by the plaintiff. Clearly the court was not justified in holding that the defendant was unable to perform the contract upon his part, or that it was impossible for
him to convey a good title, within the rule which dispenses with the necessity of tender and demand in order to work a breach of such a contract. The agreement was not broken by the fact that there was a mortgage upon the property on St. Luke’s place, which, it was alleged, might interfere with the defendant’s i-elease of the easement in the Hudson street house. The mere existence on that day of an incumbrance on tiie property which it was within the power of the vendor to remove, did not constitute a breach of the contract between the parties. The decision of this court in
Ziehen
v.
Smith
(148 N. Y. 558) seems to be decisive of this question. It was there held that the mere fact that, at the time fixed for the concurrent and mutual performance of an executory contract for the conveyance of real estate, there existed a lien or incumbrance upon the property which it was within the power of the vendor to remove, did not relieve the vendee from making a tender and demand of performance, as a condition precedent to the maintenance of an action to recover the money paid on the contract, or for damages as for its breach on the part of the vendor. In that case, as in this, there was no proof that the defendant waived tender or demand. There the alleged obstacle to the performance on the part of the defendant was the existence of a mortgage which was given by a former owner, and upon which a judgment of foreclosure had been entered. This court decided that even under those circumstances it could not be said that the existence of the mortgage and judgment placed the defendant in such a position that he was unable to perform the contract upon his part, or that it was impossible for him to convey within the meaning of the rule which dispenses with the necessity of tender and demand in order to work a breach of an executory contract for the sale of land, and that the contract was not broken by the mere fact of the existence on the day of performance of some lien or incumbrance which it was within the power of the vendor to remove. In that case the rule was stated by Judge O’Brien as follows: “ The general rule, however, to be deduced from an examination of the leading authorities
seems to be that in cases where by the terms of the contract the acts of the parties are to be concurrent, it is the duty of him who seeks to maintain an action for a breach of the contract, either by way of damages for the non-performance, or for the recovery of money paid thereon, not only to be ready- and willing to perform on his part, but he must demand performance from the other.party.” Following the principle of that case, it is obvious that the plaintiff was not in a position to maintain this action without a tender of performance upon his part and a demand of performance by the defendant. He-made no such tender or demand and, therefore, the defendant, was not in default, and the judgment in this action is not sustained by the proof.
The judgment of the courts below should be reversed and a new trial granted, with costs to abide the event.
All concur.
Judgment reversed, etc.