Smith, P. J.:
This action is brought to recover the balance due upon a lease executed between the plaintiff and defendant. The cause of action is admitted. The defendant, however, has asserted two counterclaims, both of which have been disallowed. As to one of those counterclaims he makes no question upon this appeal, the jury having decided against him. The other counterclaim was taken from the jury by the court and was decided adversely to his contention, and this decision of the County Court presents the sole question here for review.
At the close of the evidence the defendant asked for a directed verdict in his favor upon the counterclaim. The trial judge submitted the question upon one of the counterclaims and reserved for Ms own decision the question raised by the other counterclaim. To this an exception was taken. But no request was made to go to the jury upon the question reserved by the trial court, and defendant having made a motion for a directed verdict, and not having requested to go to the jury upon the [364]*364question, reserved, the trial court might properly decide "that question, and his decision can only be reviewed as the decision of a court upon a question of fact and law submitted to him by consent.
This action was begun before a justice of the peace in the town of Fort Covington. He rendered a judgment in favor of the plaintiff for forty-nine dollars and forty-six cents, and three dollars and twenty-six cents costs. The defendant thereupon applied to the County Court for" a new trial. In County Court the plaintiff recovered a verdict for forty-five dollars, which with the costs make the judgment from which the appeal is taken.
The lease upon which plaintiff sues was made in February, 1907, for the term of one year from April 1, 1907, for the sum of seventy dollars. Upon that twenty-five dollars was paid, leaving the sum of forty-five dollars due thereon, for which plaintiff has recovered judgment. At the time of the execution of the-lease there was also executed between the parties a land contract. Inasmuch as the question here for determination depends upon the construction of that contract, it will be given in full:
“Article of Agreement,
“Made and entered into this 28th day of February, in the year of our Lord one thousand nine hundred and seven, between Sarah A. Russell, of the town of Fort Covington, N. Y., of the .first part, and Michael J. Crowley, of Bombay, N. Y., of the second part, witnesseth, That the said party of .first part, in consideration of the, covenants and agreements hereinafter contained, to be performed on the part of the party of the second part, does hereby covenant and agree to and with the said party of the second part, to sell and convey to him, in fee simple, by a good quit-claim deed of conveyance, free and clear from all liens, rights of dower, or other incumbrances (unless hereinafter specified), All that piece or parcel of land, situate in the: town of Bombay, County of Franklin, and State of New York, briefly described as follows:
■ “Situate in said town of Bombay, Franklin County, State of New York, and situate on the Helena road south of St. Regis River and about one mile west of Hogansburg, and known as [365]*365the Joseph Lamping farm, containing 52 acres of land, more or less.
“The party of the second part covenants, and agrees to purchase of the said party of the first part the premises above described, and to pay and secure to be paid therefoi’, the sum of two thousand dollars in the manner following, that is to say, to be due and payable as fast and as quick-as she can get title of same from the Joseph Lamping’ heirs, she being one of said heirs.
“ On payment of the sums to be so paid soon as she can get title from the heirs, the party of the first part, covenants on that day to deliver -to the party of the second part, the deed aforesaid.
“ The said deed shall be delivered and the money paid at the office of W. Gr. Cushman, in the town of Eort Covington, N. Y. The party of the first part covenants and agrees to receive genuine current funds for the payments hereinbefore expressed;
“The party of the first part covenants and agrees, that on the-day, and upon the performance by the party of the second part of the covenants herein contained on his part to be performed, and soon as she can obtain deed from other heirs, she will deliver to the party of the second part, quiet -and peaceable possession of said premises, in as good condition as. they now are, natural wear excepted.
“The party of the second part agrees to pay all taxes and assessments that shall be paid or assessed on said premises during the term he shall have possession under this agreement. It is further covenanted and agreed, that in case the party of the second part has possession of said premises before the execution and delivery of said deed, and in case of failure on his part to perform any of the covenants, herein contained, he will yield and deliver to the party of the first part, quiet and peaceable possession of said premises; that the party of the first part may immediately after such failure re-enter and take possession of the same, without any previous notice to quit, in reference to any legal proceedings to recover possession thereof.
“It is mutually covenanted and agreed that in case either party fails to perform the covenants herein agreed to be per[366]*366formed by such party, the party so failing shall and will pay to the other the sum of two hundred dollars, which, sum is hereby fixed and agreed upon as the liquidated damages for such failure, and that the same shall in no event be considered a penalty.
“In witness whereof, the parties have hereunto set their hands'.and seals the day and year first above written.
“ Sealed and delivered in the presence of
“SARAH A. RUSSELL. [l. s.]
“M. J. CROWLEY. [l. s.]”
Under that agreement, about the first of June, the plaintiff secured one of the heirs to deed to the defendant a one-tenth share in the property, for which he paid the sum of $200. .Plaintiff made no further attempt to procure the shares of the other parties at any time. In September, seven' months after the making of this agreement, an action for partition was brought by an- owner of another share, which resulted in a sale in 1909, upon which sale defendant purchased the- property for $2,08(1 This action was brought about June, 1909, before the sale in partition. The coimterclaim upon which the question here arises was for the recovery of. the $200 stipulated damages in the contract between plaintiff and defendant.
I am unable to construe this contract as has the learned county judge. The contract contains a specific covenant to sell to the defendant for $2,000. The provision to convey, as soon as title can be obtained, fixes simply the time for the performance and does not condition the covenant to convey itself. Plaintiff was bound to use reasonable diligence to procure the conveyance from the other heirs. This she has clearly failed to do. She could have purchased at the partition sale, and then offered a conveyance to the defendant, but this she failed to do. But there was a default before the. partition sale. She made no attempt to procure title from the other heirs.
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Smith, P. J.:
This action is brought to recover the balance due upon a lease executed between the plaintiff and defendant. The cause of action is admitted. The defendant, however, has asserted two counterclaims, both of which have been disallowed. As to one of those counterclaims he makes no question upon this appeal, the jury having decided against him. The other counterclaim was taken from the jury by the court and was decided adversely to his contention, and this decision of the County Court presents the sole question here for review.
At the close of the evidence the defendant asked for a directed verdict in his favor upon the counterclaim. The trial judge submitted the question upon one of the counterclaims and reserved for Ms own decision the question raised by the other counterclaim. To this an exception was taken. But no request was made to go to the jury upon the question reserved by the trial court, and defendant having made a motion for a directed verdict, and not having requested to go to the jury upon the [364]*364question, reserved, the trial court might properly decide "that question, and his decision can only be reviewed as the decision of a court upon a question of fact and law submitted to him by consent.
This action was begun before a justice of the peace in the town of Fort Covington. He rendered a judgment in favor of the plaintiff for forty-nine dollars and forty-six cents, and three dollars and twenty-six cents costs. The defendant thereupon applied to the County Court for" a new trial. In County Court the plaintiff recovered a verdict for forty-five dollars, which with the costs make the judgment from which the appeal is taken.
The lease upon which plaintiff sues was made in February, 1907, for the term of one year from April 1, 1907, for the sum of seventy dollars. Upon that twenty-five dollars was paid, leaving the sum of forty-five dollars due thereon, for which plaintiff has recovered judgment. At the time of the execution of the-lease there was also executed between the parties a land contract. Inasmuch as the question here for determination depends upon the construction of that contract, it will be given in full:
“Article of Agreement,
“Made and entered into this 28th day of February, in the year of our Lord one thousand nine hundred and seven, between Sarah A. Russell, of the town of Fort Covington, N. Y., of the .first part, and Michael J. Crowley, of Bombay, N. Y., of the second part, witnesseth, That the said party of .first part, in consideration of the, covenants and agreements hereinafter contained, to be performed on the part of the party of the second part, does hereby covenant and agree to and with the said party of the second part, to sell and convey to him, in fee simple, by a good quit-claim deed of conveyance, free and clear from all liens, rights of dower, or other incumbrances (unless hereinafter specified), All that piece or parcel of land, situate in the: town of Bombay, County of Franklin, and State of New York, briefly described as follows:
■ “Situate in said town of Bombay, Franklin County, State of New York, and situate on the Helena road south of St. Regis River and about one mile west of Hogansburg, and known as [365]*365the Joseph Lamping farm, containing 52 acres of land, more or less.
“The party of the second part covenants, and agrees to purchase of the said party of the first part the premises above described, and to pay and secure to be paid therefoi’, the sum of two thousand dollars in the manner following, that is to say, to be due and payable as fast and as quick-as she can get title of same from the Joseph Lamping’ heirs, she being one of said heirs.
“ On payment of the sums to be so paid soon as she can get title from the heirs, the party of the first part, covenants on that day to deliver -to the party of the second part, the deed aforesaid.
“ The said deed shall be delivered and the money paid at the office of W. Gr. Cushman, in the town of Eort Covington, N. Y. The party of the first part covenants and agrees to receive genuine current funds for the payments hereinbefore expressed;
“The party of the first part covenants and agrees, that on the-day, and upon the performance by the party of the second part of the covenants herein contained on his part to be performed, and soon as she can obtain deed from other heirs, she will deliver to the party of the second part, quiet -and peaceable possession of said premises, in as good condition as. they now are, natural wear excepted.
“The party of the second part agrees to pay all taxes and assessments that shall be paid or assessed on said premises during the term he shall have possession under this agreement. It is further covenanted and agreed, that in case the party of the second part has possession of said premises before the execution and delivery of said deed, and in case of failure on his part to perform any of the covenants, herein contained, he will yield and deliver to the party of the first part, quiet and peaceable possession of said premises; that the party of the first part may immediately after such failure re-enter and take possession of the same, without any previous notice to quit, in reference to any legal proceedings to recover possession thereof.
“It is mutually covenanted and agreed that in case either party fails to perform the covenants herein agreed to be per[366]*366formed by such party, the party so failing shall and will pay to the other the sum of two hundred dollars, which, sum is hereby fixed and agreed upon as the liquidated damages for such failure, and that the same shall in no event be considered a penalty.
“In witness whereof, the parties have hereunto set their hands'.and seals the day and year first above written.
“ Sealed and delivered in the presence of
“SARAH A. RUSSELL. [l. s.]
“M. J. CROWLEY. [l. s.]”
Under that agreement, about the first of June, the plaintiff secured one of the heirs to deed to the defendant a one-tenth share in the property, for which he paid the sum of $200. .Plaintiff made no further attempt to procure the shares of the other parties at any time. In September, seven' months after the making of this agreement, an action for partition was brought by an- owner of another share, which resulted in a sale in 1909, upon which sale defendant purchased the- property for $2,08(1 This action was brought about June, 1909, before the sale in partition. The coimterclaim upon which the question here arises was for the recovery of. the $200 stipulated damages in the contract between plaintiff and defendant.
I am unable to construe this contract as has the learned county judge. The contract contains a specific covenant to sell to the defendant for $2,000. The provision to convey, as soon as title can be obtained, fixes simply the time for the performance and does not condition the covenant to convey itself. Plaintiff was bound to use reasonable diligence to procure the conveyance from the other heirs. This she has clearly failed to do. She could have purchased at the partition sale, and then offered a conveyance to the defendant, but this she failed to do. But there was a default before the. partition sale. She made no attempt to procure title from the other heirs. She was at no time' in a position when she could perform had defendant tendered the money. For this reason a tender by defendant was waived. In 28 American -and English Encyclopaedia of Law (2d ed. p. 9) the text reads: “Neither need the purchase money be tendered by the vendee when the vendor is [367]*367unable to convey the land.” In Davis v. Van Wyck (64 Hun, 186) the vendor had parted with the land and this was held to excuse a tender because the vendor had put.it out of his power to convey. Plaintiff is in no better position to convey when she has no title and has made no endeavor to get one. With greater reason, therefore, could he insist that tender was excused after the partition action had been commenced in the fall of 1907, a lis pendens filed, and he had been brought into court as a defendant. At the trial in Justice’s Court plaintiff testified that she could not carry out the provisions of the contract. Evidence of the sale in partition was given in County Court by defendant without objection and defendant was denied relief only on the ground that plaintiff was not obliged to procure title from the other heirs, and that her . obligation only began if she should so procure title. Differing as we do from the trial judge in his construction of the contract, we find that plaintiff is clearly liable for a breach of her contract, and primarily liable for the full $200, the stipulated damages.
But these damages, though stipulated, the defendant himself has lessened by purchasing the property for $2,080. The costs of the action amounted to $383.27, of which the defendant was required to pay one-tenth, or $38.32. The actual damage to the defendant, therefore, is made up of the $80 he paid in excess of the price which he was to pay to the plaintiff and the $38.32, one-tenth of the costs of the action. To the extent, therefore, of $118.32 his counterclaim was clearly right and should have been allowed.
The judgment and order should, therefore, be reversed on law and facts, and a new trial granted, with costs to appellant to abide the event.
All concurred, except Houghton, J., dissenting, in opinion, in which Betts, J., concurred.