.

Opinion of the Court, per ALLEN, J.

A. Lansing & George W. Van Slyck for the respondents. The finding of fact, that plaintiff failed to perform, is conclusive. (Bergen v. Wimple, 30 N. Y., 319; Cady v. Allen, 18 id., 573.) The plaintiff having failed to perform or to assign any justification or cause for his delay, and the defendant not having acquiesced in the delay, the contract was at an end, and the plaintiff is not entitled to a specific performance. (Dimick v. Michael, 4 Sands., 374; Benedict v. Lynch, 1 Johns. Ch., 370; Chase v. Hogan, 3 Abb. P. N. Series, 57; Parker v. Therold, 11 Eng. L. & Eq., 275.) The court having failed to find in plaintiff's favor as to the alleged excuse, this court will presume that it found against him. (Bergen v. Wimple, 30 N. Y., 319; Cady v. Allen, 18 id., 573.) Time is always material when the parties elect to make it so. (Opinions Judges INGRAHAM and CARDOZO in this case; Dimick v. Michael, 4 Sands., 374, 376; Benedict v. Lynch, 1 Johns. Ch., 370; Chase v. Hogan, 3 Abb. Pr., R., 57.)

ALLEN, J. There were no laches on the part of the plaintiff, nor any delay in the assertion of his rights. He has shown himself, in the language of the cases, "ready, desirous, prompt, and eager" to carry out the contract and have a performance of it. The brief delay of a few hours in making a formal tender of the purchase-money and demanding a conveyance of the property, was explained and excused. He had not, for some reason, completed his searches, and satisfied himself as to the title, and the day before that appointed for the performance of the contract he applied to the attorney of the defendants, at whose office the parties were to meet, for an extension of the time to enable him to complete his searches, and the attorney promised him that he would send him word as soon as the defendants came to his office if they arrived the next day, so that he might see them about it.

Not receiving any message from the attorney the next day, he had reason to believe, either that the parties had not arrived or that they had assented to his request. He might reasonably and properly rely upon this promise of the attorSICK ELS-VOL. IV.

42 ·

Opinion of the Court, per ALLEN, J.

ney, and it should not be imputed to him as laches or as evidence of an indifference to, or an unwillingnesss to perform the contract, that he did so. The plaintiff had all of the 24th of January, within which to perform the contract, as no hour was named for that purpose. He did not wait for the promised notice from the defendants' attorney, but during the business hours, and late in the afternoon of that day, went to the office and there found Mr. Von Schoening, one of the contracting parties, and was told by him that he would have nothing more to do with him, that he did not pay the money that same day, he did not fulfill his agreement and he would have nothing more to do with it. The feme defendant had been there in the earlier part of the day but had left, and the plaintiff was told he could not see her that night. The next morning the plaintiff sought the defendants early at their own house at Harlem, with the money to make the tender of the purchase-money and was told they were not at home. He then tendered the money to the attorney at his office, and this being Saturday, on the Monday following he again sought the defendants to tender the money to them personally, but was unable to find Mrs. Von Schoening, who was the owner of the property. She evidently kept out of the way, and the complaint was verified on the same day. In Duffy v. O'Donovan (46 N. Y., 223), we held the plaintiff entitled to a specific performance against the vendor and the person to whom he had conveyed the premises with notice of the contract, although the money was not paid or tendered at the hour, the purchaser acting in good faith and intending to peform, and supposing, from the acts and declarations of the agent and attorney of the seller, that the money would be received at a later hour in the day.

Time, in the performance of an agreement either for the sale or purchase of real property, is always material, and a court of equity will not, any more than a court of law, excuse laches and gross negligence in the assertion of a right to a specific performance. But time is not of the essence of the contract, unless made so by the terms of the contract; and,

Opinion of the Court, per ALLEN, J.

therefore, although there may not, when time has not been made essential, be performanee at the day, if the delay is excused, and the situation of the parties or of the property is not changed so that injury will result, and the party is reasonably vigilant, the court will relieve him from the consequences of the delay and grant a specific performance. (Radcliffe v. Warrington, 12 Vesey, 326; More v. Smedburgh, 8 Paige, 600; Edgerton v. Peckham, 11 id., 352.) Each case must be judged by its own circumstances.

A party may not trifle with his contracts and still ask the aid of a court of equity. Neither will the law be administered in a spirit of technicality, and so as to defeat the ends of justice. In this instance there is no vexation, no room for suspicion of any trick, on the part of the plaintiff; at most, it was a mistake in depending upon the promise of the defendant's attorney to advise him when the defendants arrived, if they should arrive on the day fixed for the performance of the contract.

It was assumed by the learned judge on the trial that one of the parties could, by notice to the other, make time of the essence of a contract, when, by its terms, it was not made so. This may be questionable, but need not be considered. The party in such case, if the operation and effect of the contract are to be essentially changed so as to vary his rights or duties at the volition of the other, should have reasonable notice in advance of the time when he will be called upon to act. Here no such notice was given, but, on the contrary, the plaintiff was put at ease by the promise of the attorney of the defendants. Doubtless, a party may be held to a strict performance as to time and put in default for non-performance, that is, a default in law; and whether equity would relieve, would depend on circumstances. But to do this, the party seeking to put the other in default must not only be ready and willing to perform, but he must tender performance at the time and demand performance from the other. Von Schoening testified that a deed had been prepared and was ready, but the plaintiff was not notified of the fact and it was not shown or

Statement of case.

offered to him. The defendants took especial pains to prove
by the feme defendant, the owner of the premises, that she
had never authorized any one to complete the contract or to
receive the money for her, and she was not at the place of
performance when the plaintiff called. The plaintiff was not
in default, and was not put in default by any acts or offers of
the defendants. The judge, before whom the cause was tried,
has not found that the defendants put the plaintiff in default
by an offer and a demand of performance, and the evidence
would not have justified such a finding. But he has found
that the plaintiff had failed to perform, and, therefore, was
not entitled to relief merely by reason of a casual and justi-
fiable delay of a few hours in making a formal tender of per-
formance. In this, we think, there was errror.

The judgment should be reversed and a new trial granted.
All concur.

Judgment reversed.

49 332 128 373 49 332 136 355 49 332 154 344

ROBERT H. MOORE, Appellant, v. GEORGE MAUSERT et al.,
Repondents.

Where a statute amendatory of a former one sets forth the original statute
as amended, retaining a portion of the old, omitting a portion, and incor-
porating therein new provisions, the effect is not to repeal and re-enact
the portion retained, but such portion continues in force from the time
of the first enactment; the portions omitted are abrogated, and cease to
form part of the statute from the time the new act takes effect, and the
new provisions become operative from that time.
Accordingly, held, that the word "hereafter," in the first line of section 1
of the act for the better security of mechanics, etc., chapter 402, Laws
of 1854, being retained in the section as amended by chapter 588, Laws
of 1869, applies to and includes all labor and materials furnished after
the passage of the original act; that the new provision, requiring notice
to be filed in the office of the county clerk, became operative when the
amendatory statute took effect; and the provision in the fourth section
of the original act, as to serving notice upon the town clerk, etc., having
been omitted in the section as amended, was at the same time repealed.

(Argued April 29, 1872; decided April 30, 1872.)

Statement of case.

APPEAL from order of the General Term of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon the report of a referee.

This was a proceeding under the mechanics' lien law. Defendants made a contract with John Appley to furnish materials and do all the carpenter work for the erection of two houses in the town of Bethlehem, county of Albany, upon lands of defendants. Appley purchased all the materials from plaintiff, who commenced furnishing them on or about February 18th, 1869, and finished on the 28th April, 1869. On the 15th of May, 1869, plaintiff served upon defendants and the town clerk of the town of Bethlehem a notice of lien upon the premises for the amount due, being $634.98, which notice was filed on the same day in the office of said town clerk. At that time there was due from defendants to Appley the sum of $600.

The referee found, as conclusion of law, that the service of the notice and filing the same at the time with the town clerk created a lien upon the premises, and that plaintiff was entitled to judgment for $600, with interest.

Anson Bingham for the appellant. The act of 1869 applied only to those who should thereafter furnish materials. (Ely et al. v. Holton, 15 N. Y., 595; Hartung v. People, 26 id., 172.) The act of 1864 was not repealed by implication as to those furnishing materials before the act of 1869 took effect. (Wood v. United States, 16 Peters, 363; Davies v. Fairbairn, 3 How. [U. S.], 646; Miller v. Henshaw, 4 Dana [Ky.], 325; 5 Abb. Dig., 93, § 200; Conner v. Southern Express Co., 37 Ga., 397; Board of Supervisors v. Campbell, 42 Ill., 492; Hume v. Gossett, 43 id., 297; The People v. Barr, id., 198; Dwarris on Statutes, Potter's ed., 155-160, and cases there cited.)

N. C. Moak for the respondents. Plaintiff had no claim. against defendants, but simply a right in rem. (Conkright v. Thompson, 1 E. D. Smith, 663.) The legislature has the