Opinion
October 16, 1908.
A. Wolodarsky, for the appellants.
Lehman Telsey, for the respondent.
Before any witness was sworn the defendant moved that the case be sent to the jury calendar for a jury trial. The claim was that the complaint itself showed that the defendant could not perform, and that therefore the case was not of equitable jurisdiction, as specific performance will not be decreed where it is impossible. But it did not appear that it was impossible. The defendant might, for aught that appeared, put himself in a position to perform by acquiring title to the four inch strip encroached upon. The case is no different than if the defendant had not owned any of the land he contracted to convey. The motion to send the case to the jury calendar was therefore properly denied; and as at the close it appeared that the defendant could not perform, the court had the right to give the money judgment prayed for.
The judgment should be affirmed.
JENKS, HOOKER, RICH and MILLER, JJ., concurred.
Judgment affirmed, with costs.