Opinion
July 2, 1936.
In an action to enforce a vendee's lien upon certain real property, order denying plaintiff's motion to strike out the affirmative defense contained in the answer of the intervening defendant reversed upon the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. In our opinion, it is no defense to this action that the performance of the contract in question has become more burdensome than was anticipated when the contract by the defendants was made ( P.P. C.I.R.R. Co. v. C.I. B.R.R. Co., 144 N.Y. 152), nor is it any defense that the intervening defendant now offers to perform the agreement and make the improvements in question. Approximately ten years have elapsed since plaintiff purchased this property, and it would be inequitable to compel her to suffer any further delay on the mere offer of the intervening defendant to make such improvements. Lazansky, P.J., Young, Hagarty and Davis, JJ., concur; Carswell, J., not voting.