in Stark agt. Stark and another. behalf of the party, is new, and was obviously regarded by the legislature as material to the rights of both parties. So far as the party in whose behalf it is made is concerned, the opposite party can waive nothing for him. In short, unless the offer when subscribed by the attorney is verified according to the statute, it cannot have the effect to set the party in motion on whom it is served. He is not required to notice it any manner. He need not return it, and he waived nothing by retaining it. The defect is not a mere irregularity, but is a matter of substance." I have made these quotations to show that the court was only considering a question as between the parties to the judgment, which was all that was before them. The case of Riggs agt. Weydell (17 Hun, 515), differed from McFarren agt. St. John, in the fact that the plaintiff declined to accept the offer but gave no reason therefor. Upon the trial the plaintiff recovered less than the offer and then defendant moved to be allowed to amend the offer by annexing an affidavit. In denying the motion at special term the court said: "If the defendant desired the benefit of the statute they were bound to do just what the statute pointed out. To talk of amending is to misconceive the office of amendment; besides, that would be to make now for the first time a good offer," and this opinion was approved at general term. This case was affirmed (78 N. Y., 586), the court saying: "We concur with the special and general term, that the offer to allow judgment to be taken was imperfect because not in conformity with the Code, and that there was no waiver of the defect by the notice served by the plaintiff's attorney upon the defendant's attorney, or in any other manner. We are also of the opinion that if the case was one in which courts were authorized to allow the defendant to serve the affidavit nunc pro tune, it was matter of discretion with the special term and having been once refused there, as well as by the general term, no appeal lies to this court." It will be observed that the court of appeals are more guarded than the general terms in 14 Hun and 17 Hun (supra), that Stark agt. Stark and another. court characterizing the offer as "imperfect." The next case cited for the creditors is Werbolowsky agt. Greenwich Insurance Company (5 Civ. Pro. R. 303), where the city court of New York deny the power of the court to allow an amendment by supplying an affidavit to an offer, and the above cases in 14 Hun and 17 Hun, are cited as denying the power. I do not read those cases as denying the power. In Eagan agt. Moore (2 Civ. Pro. R., 300), the New York common pleas held at special term that the court had such power. In all these cases the question arose between the parties to the judgment, and they are all the cases arising under section 740 that have come within my examination. The provision of the Code with regard to offers and their acceptance are no more statutory or matters of substance than the verification of the complaint for certain purposes, and yet after judgment a plaintiff was allowed to amend nune pro tune by filing an affidavit of verification (Jones agt. U. S. Slate Co., 16 How., 129); nor than an affidavit of default, and yet, an irregularity in assessing damages without such affidavit is a question of practice and not reviewable in the court of appeals (Catlin agt. Billings, 16 N. Y., 622); nor than the provisions relating to the confession of judgments. Indeed the court in McFarren agt. St. John, say: "In short, the same reasons exist in respect to an offer as in case of a confession of judgment, for holding that all the substantial requirements of the statute have been complied with." The case of Mitchel agt. Van Buren (27 N. Y., 300), is then in point and should receive more than a passing notice. It was a motion by a subsequent judgment creditor to set aside a prior confession of judgment, and on that motion the court permitted an amendment to support the judgment by signing and verifying a new statement stating the facts more specifically. The reasoning of DENIO, C. J., after showing that the court had the same power of amendment over confessed judgments as over any of their records, proceeds to state the provisions of section 173 of the Code of Stark agt. Stark and another. Procedure (Code of Civ. Pro., sec. 723) and says: "This is very broad language, and plainly embraces a case like the present where it was shown that the proceeding was in good faith and the intention of the parties was to create valid judgments for debts actually due to the amount stated in the judgment." "It is a jurisdiction of the same kind with that which it (the supreme court) exercises in relieving against defaults and slips in practice." This case was followed in Cook agt. Whipple (55 N. Y., 166). In Fawcett agt. Vary (59 N. Y., 597), where the affidavit. that no answer or demurrer had been served and which had been filed with the clerk for the purpose of perfecting judgment by default, had been properly sworn to before the proper officer who had neglected to sign the jurat, and the omission had not been discovered until after the judgment, the court held it had power and it was within its discretion to permit the officer to sign nunc pro tunc. In Lawton agt. Kiel (51 Barb, 30), a warrant of attachment had been issued upon an affidavit sworn to before a commissioner in another state, but no certificate of the secretray of state had been obtained as required by the statute, and the court at general term held that an objection for that cause was not fatal—that the omission might be amended and supplied. The special term in Williamson agt. Williamson (64 Пow., 450) held that such an omission of the certificate of the secretary of state to an affidavit verifying a complaint upon which an order for the publication of summons was granted, the court never acquired any jurisdiction, but it does not appear in that case that there was any application to supply the defect (See, also, to same effect, Phelps agt. Phelps, 6 Civ. Pro. R., 117, at special term). Without further examination, I conclude by holding that Mitchel agt. Van Buren is sufficient authority for the power of amendment invoked by the plaintiff, and that, as it appears that the omission to annex the proper affidavit to the acceptance was an inadvertence of the attorney, and that the Johnson and another agt. Duncan. authority to accept actually existed, therefore the amendment asked by the plaintiff should be granted. Motion of creditors denied and motion of plaintiff granted, without costs to either party. N. Y. SUPERIOR COURT. WILLIAM W. JOHNSON and another, executors, &c., agt. JOHN P. DUNCAN. Title to real estate — Specific performance — when performance may or may not be resisted-Laches. A purchaser cannot justify his refusal to perform his contract by a mere factious objection to the title tendered him, nor is it sufficient for him when the jurisdiction of an equity court is invoked to compel him to perform his contract merely to raise a doubt as to the vendor's title. Before he can successfully resist performance of his contract on the ground of defect of title, there must be at least a reasonable doubt as to the vendor's title, such as affects its value, and would interfere with its sale to a reasonable purchaser, and thus render the land unmarketable. Inexcusable laches and delays will debar a party from the relief which they being absent, he might have by the judgment for specific performance. Time, though not ordinarily of the essence of the contract may become so, if by its effluxion a change of value or other material change of circumstances has been produced, but if the delay of the defendants is unreasonable and inexcusable, it is enough to relieve the unwilling party from the contract. It seems, that a party to a contract for the purchase of land has no equit able lien for the amount paid on the execution of the contract where he has lost the right to enforce such contract by his own laches. Special Term, October, 1885. ACTION for specific performance. Carlisle Norwood, Jr., for plaintiffs. John E. Parsons, for defendant. Johnson and another agt. Duncan. INGRAHAM, J.-The rule as settled in this state is: "The purchaser cannot justify his refusal to perform his contract by a mere captious objection to the title tendered him, nor is it sufficient for him when the jurisdiction of an equity court is invoked to compel him to perform his contract merely to raise a doubt as to the vendor's title. Before he can successfully resist performance of his contract on the ground of defect of title there must at least be a reasonable doubt as to the vendor's title, such as affects its value and would interfere with its sale to a reasonable purchaser and thus render the land unmarketable" (Hellnigel agt. Manning, 97 N. Y., 60; Schriver agt. Schriver, 86 N. Y., 575). And after a careful examination of this case I cannot see that the existence of the contract made by the plaintiffs' testator to Mr. Grant raises a reasonable doubt as to the title. The laches of Mr. Grant or his assignor, Mr. Chaffee, would debar them from enforcing the specific performance of their contract. In the Merchants' Bank agt. Thompson (55 N. Y., 12), it is said: "That inexcusable laches and delays will debar a party from the relief which they being absent he might have by the judgment for specific performance. Time, though not ordinarily of the essence of the contract, may become so, if by its effluxion a change of value or other material change of circumstances has been produced. * The other rule must be, that if the delay of defendants is unreasonable and inexcusable, it is enough to relieve the unwilling party from the contract." * * * It is claimed, however, by the defendant that as against a subsequent purchaser with notice a vendee under a prior contract who has paid part of the purchase-money has a lien on the land, and a second purchaser holds the property subject to such equitable rights, and to support that claim Chase agt. Peck (21 N. Y., 581), and Clark agt. Jacobs (56 Howard's Practice, 519), are cited. In Chase agt. Peck the court held that a grantor of land had an equitable lien upon the land for the consideration of the grant, and such a lien becomes in |