App. Div.]

FIRST DEPARTMENT, JUNE, 1904.

the general character of the work in the new building should be substantially the same as in a pattern building No. 128 Second avenue, except in certain particulars specifically referred to in the contract. In consideration of that agreement, the present plaintiff released all right to restrict the new building. The agreement in suit proceeds to stipulate as follows: "It is expressly agreed that the vendor (that is, the defendant Buttenwieser) will make any repairs in the nature of defects required within sixty days after closing title hereunder, provided such repairs are not caused by the acts of the tenants or by the public or from a stoppage of the plumbing." It is not disputed that a building was erected by the defendant Buttenwieser on the land 125 Second avenue. He had conveyed the premises to one Fox, who is made a party to this action; but it is not claimed that that change of title would affect the liability of the defendant Buttenwieser, because Fox was undoubtedly simply holding the title for him, and if specific performance can be had at all it could be directed against both defendants. By the terms of the agreement between the plaintiff and the defendant Buttenwieser, it was stipu lated that the deed should be delivered on the 1st day of November, 1901, if the building. should then be occupied, and, if not then completed, adjournments should be had from time to time not exceeding July 1, 1902, to finish the building, and the vendor to have adjournments not exceeding sixty days after the completion of the building for the purpose of placing a mortgage loan upon the premises. On the 15th of May, 1901, the defendant Buttenwieser took title to the property and a release was given by the plaintiff of the restrictions upon the property. Buttenwieser commenced the construction of a building and claimed that it was substantially completed on the 1st day of April, 1902. On the 25th of March, 1902, the plaintiff served on the defendant a written notice in these words: "Please take notice that Ray Sokolski, wife of Albert Sokolski hereby demands a conveyance to her of the premises No. 125 Second Avenue, * * * pursuant to the terms of your contract with her, dated May 6, 1901, and that she will attend at the office of Messrs. M. S. & I. S. Isaacs, No. 27 Pine Street, * * * on the first day of April, 1902, at one o'clock in the afternoon to receive such deed and pay the consideration therefor."

It is apparent, therefore, that by the attitude which the plaintiff

FIRST DEPARTMENT, JUNE, 1904.

[Vol. 96. took the time for the performance of this contract was fixed as the 1st day of April, 1902. On that day she attended, through her attorney, at the place designated and demanded a deed of the premises, but only consented to perform the contract on her part on condition that the defendant Buttenwieser would supply omissions in the work done on the building erected by him on said premises in certain particulars (some of which are substantial and some of which are utterly frivolous), or allow to the plaintiff out of the purchase price of the property a sum of money as the cost of certain changes required and of necessary expenditures to supply omissions. The defendant Buttenwieser refused to accede to this demand, and thereupon, and on the same day, the summons and complaint in this action were served.

The theory upon which the action proceeds is that specific performance of a contract for the sale of real estate may be directed by the court in cases in which an allowance may be made by way of deduction from the purchase price for incumbrances or other charges upon the property. There is no doubt of the general rule upon this subject and the English courts have carried the doctrine so far as to compel specific performance of a contract where the price is fixed but where it is required to make expenditures for repairs, and have allowed the cost of the repairs in reduction of the purchase price. But the doctrine of the English cases has never been adopted by the courts of this State. Abatement from the purchase price has been allowed for deficiency in title as to the quantity or quality of the property sold, but none of the cases in this State have gone to the extent of making an allowance in diminution of the purchase price named in an executory contract for the sale and purchase of land, where such an allowance would be contrary to the terms of the contract and to the express stipulations of the contracting parties and where it would in effect be making a new contract between them.

It is entirely immaterial to the disposition of this case whether the doctrine laid down in Levy v. Hill (50 App. Div. 294; 70 id. 95; affd., 174 N. Y. 536) applies or not, and it is not necessary for us to resort to that case to find a rule of decision for this. Here, it is obvious from the terms of the contract that the defendant Buttenwieser had the right to make any repairs in the nature of defects within sixty days after closing the title,

FIRST DEPARTMENT, JUNE, 1904.

App. Div.]

under the agreement between himself and the plaintiff. It is expressly so stipulated in the contract, and on the day when the parties met for performance he was not bound to recognize at once that the alleged defects (some sixty-four in number) actually existed or concur in the plaintiff's claim that such was the case, nor was he bound then and there to stipulate that he would remedy each and every one of the claimed defects, and he was entitled to refuse to do So. He was also entitled to decline to make any allowance then and there for those defects, for he had sixty days after the closing of the title in which to make any repairs in the nature of defects that he would be required to make good under his contract. He was not obliged to remedy defects to make repairs until after the title was closed. It was for the plaintiff to take her deed, unless there were some objection to the title, and then afterwards to insist upon the defendant making good any defects, if they existed, and if that were not done, then she would have her action at law against him. The judgment appealed from should be affirmed, with costs.

VAN BRUNT, P. J., INGRAHAM, MCLAUGHLIN and LAUGHLIN, JJ., concurred.

Judgment affirmed, with costs.

CHRISTOPHER TAUTPHOEUS, Appellant, v. HARBOR AND SUBURBAN BUILDING AND SAVINGS ASSOCIATION, Respondent.

-a certificate of stock of a

Evidence of debt for the absolute payment of money”. building and savings association with a guaranty of payment of the principal thereof, which must be reformed as to its date, is not — the retention of an answer waites the service of an order that the issues be tried.

The complaint in an action brought to recover upon a certificate of stock issued by the defendant, a building and savings association, alleged that the certificate sued upon was a duplicate of one issued February 3, 1897, but that, through an error, such certificate bore date December 1, 1899, instead of February 3, 1897; that the certificate contained a guaranty that the defendant would pay the principal thereof at any time after seventy-two months from its date; that the seventy-two months expired February 3, 1903; that on January 18, 1904, the plaintiff demanded such principal sum, but that the defendant neglected to pay the same.

FIRST DEPARTMENT, June, 1904.

[Vol. 96. The defendant served an answer which the plaintiff retained, but at the expira. tion of twenty days from the service of the summons and complaint the plaintiff entered judgment against the defendant by default, upon the ground that an order directing the issues to be tried was not served with the answer as, provided in section 1778 of the Code of Civil Procedure, which provides that in an action against a corporation to recover damages for the non-payment of a promissory note or other evidence of debt for the absolute payment of money at a particular time the plaintiff may take judgment as in case of default in pleading at the expiration of twenty days after service of a copy of the complaint, unless the defendant serves with a copy of his answer or demurrer a copy of an order of a judge directing that the issues raised by the pleadings be tried.

Held, that section 1778 of the Code of Civil Procedure only applies where the instrument shows upon its face that the plaintiff is entitled to the amount sought to be recovered;

That it did not apply in the case at bar, as, even if the certificate sued upon was an evidence of debt for the absolute payment of money at a particular time, the plaintiff could not recover until he had proved, independent of the certificate, that there had been a mistake in the date thereof;

That the retention of the answer by the plaintiff precluded him from treating such answer as a nullity.

APPEAL by the plaintiff, Christopher Tautphoeus, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of April, 1904, vacating a judgment in favor of the plaintiff theretofore entered in this action and setting aside an execution issued thereon and a levy made thereunder.

Hector M. Hitchings, for the appellant.

Alexander S. Bacon, for the respondent.

MCLAUGHLIN, J.:

The plaintiff appeals from an order vacating a judgment, setting aside an execution issued thereon and a levy made thereunder.

The defendant is a domestic corporation and the action is brought to recover upon a certificate of ten shares of its guaranteed six per cent stock. The complaint alleges that the certificate sued upon is a duplicate of one of the same number issued on the 3d day of February, 1897; that the original, upon its purchase by the plaintiff, was surrendered to the defendant and the one sued on issued in its place; that the duplicate so issued was, by an error, made to bear date

FIRST DEPARTMENT, JUNE, 1904.

App. Div.]

December 1, 1899- the date of the transfer-instead of February 3, 1897 — the date of the original certificate; that the certificate upon its face stated that the plaintiff is the owner of ten shares of such stock and that it "is issued and accepted subject to the articles of association, by-laws and terms and conditions expressed on back hereof and is transferrable only on the books of the association after its surrender properly assigned." The complaint further alleges that on the back of the certificate appear the following articles of association, by-laws, terms and conditions: "This certificate is guaranteed against any assessments. As to payment of dividends of $1.50 per share on the first days of January, April, July and October of each year. As to payment of principal sum in United States gold coin of standard weight and fineness or its equivalent, on thirty days' written notice given by the holder to the secretary at the principal office of the association at any time after 72 months froin date hereof;" that the seventy-two months mentioned expired on the 3d day of February, 1903; that on the 18th day of January, 1904, the plaintiff filed a written notice of withdrawal in the form prescribed by the defendant, coupled with a demand for payment of said principal sum; that the defendant failed to pay as promised in the certificate and judgment was demanded for the principal sum, with interest from the date of the demand. A copy of the summons and complaint was served on the defendant's secretary on the 25th day of March, 1904. On the 7th day of April following the defendant served an answer which put in issue the material allegations of the complaint. The plaintiff retained the answer, but at the expiration of twenty days, exclusive of the day of service of the summons and complaint, entered judgment against defendant for the relief demanded as by default upon the ground that an order was not served with the answer as provided in section 1778 of the Code of Civil Procedure directing that the issues be tried. Subsequently an execution was issued upon the judgment and a levy made thereunder when the defendant learned for the first time that judg ment had been entered. It thereupon applied for and obtained the order from which the present appeal is taken.

The plaintiff claims that the certificate sued on is an evidence of debt for the absolute payment of money at a particular time and, therefore, he had a right to enter the judgment inasmuch as no order