Opinion
October Term, 1901.
Charles H. Machin, for the appellant.
Ellis L. Aldrich, for the respondent.
Present — GOODRICH, P.J., WOODWARD, HIRSCHBERG, JENKS and SEWELL, JJ.
This is an action in the Municipal Court to recover $100, this being the amount of an advance payment upon an executory contract for the sale of real estate, the plaintiff claiming that the defendant is in default in conveying the property.
While there was no time fixed in the contract for the final transfer, the evidence is conclusive that there was an understanding that it was to be within a few days of the signing of the contract. The plaintiff never made any tender of the amount due; never asked the defendant to perform, and under the rule laid down in Ziehen v. Smith ( 148 N.Y. 558, 560) the judgment dismissing the complaint upon the merits should be affirmed, with costs.
Judgment of the Municipal Court affirmed, with costs.