Kosky v. Borowko

224 A.D. 764

Opinion

Order denying motion to dismiss complaint and cancel lis pendens reversed upon the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. The action is for the specific performance of a contract whereby respondent agreed to convey to appellants certain real property in exchange for other real property of the appellants. Since the commencement of the action the respondent disposed of the real property which he had so contracted to convey to appellants. By this conveyance respondent has placed himself in such position that he cannot now comply with the terms of the contract which he seeks in this action specifically to enforce. He must- for that reason be considered to have abandoned the contract. It is inequitable to enforce a contract at the instance of a party who has voluntarily placed himself in such position that he himself cannot comply with it. Kapper, Seeger and Scudder, JJ., concur; Lazansky, P. J., and Hagarty, J., dissent and vote to affirm upon the ground that there is no proof that the property is beyond respondent’s control and that he cannot be vested with the title for the purpose of carrying out his contract when the case is reached for trial.