the said sum of $—, and thereupon requested said defendant to pay him, the said plaintiff, the said sum of $—, and receive said conveyance in manner and form as his said counsel should approve; but that said defendant refused, and has continually since that time and still does refuse, to accept such conveyance or to pay the said sum of $ or any part thereof.

And said plaintiff alleges, that at the time of said offer he was, and has ever since continued and still is, seized in fee simple of a good and indefeasable estate of inheritance in said premises, free from all incumbrances, except, &c. (as in the articles of agreement).

Wherefore the said plaintiff demands the judgment of this court, that said defendant may be adjudged specifically to perform and carry into execution the said articles of agreement, the said plaintiff hereby offering to perform the same on his part, and that said defendant pay the plaintiff the said sum of $, with interest, &c., the plaintiff offering thereon to convey him said premises; or for such other and further relief as to the court shall seem just and proper, with his costs of action.

(No. 8.)

For specific performance of agreement for sale of real estate, and to compel execution of deed against a vendor who has received part of purchase money and delivered up possession, but refuses to make a title.

Title of the Cause.

The above named plaintiff complains of the above named defendant, and alleges the following facts, constituting his

cause of action: That the defendant being seized and possessed of a certain house and lot of land, with the appurtenances, situated in, &c., and bounded and described as follows, [describe the premises]: entered into a contract or covenant, under his hand and seal, with the said plaintiff, on the day of, for the sale of said house and lot to said plaintiff, at and for the price of $500, which contract or covenant is in the words and figures following, to wit, [here set forth agreement, verbatim]: as by the said contract, to which said plaintiff begs leave to refer when the same shall be produced, will appear.

And the plaintiff further states, that previous to the execution of said contract, he paid to the defendant the sum of $1,000, as a deposit and in part of his said purchase money, and the said defendant hath since delivered up possession of the said purchased premises to the plaintiff.

And the plaintiff alleges, that he hath always been and is ready and willing to perform his part of the said contract, and, on having a good and marketable title shown. to the premises, and a conveyance of the fee simple thereof, discharged of all incumbrances, made to him, to pay the residue of the purchase money to the said defendant.

And the plaintiff alleges, on his information and belief, that the defendant is able to make out a good and marketable title to the said premises, if he thinks proper so to do, but that he refuses and declines to make out a good and marketable title to the said premises, notwithstanding the plaintiff hath demanded the same from him, and required him so to do, to wit, on the ———— day of (the day specified in the contract, if any), and at the same time offered to pay him the residue of the purchase money, upon having the title made out and a proper conveyance of the said premises executed by the defendant to the plaintiff, his heirs and assigns.

And the plaintiff further alleges, that the whole of the residue of the purchase money of the premises has been ready and unproductive in his hands, for completing the said purchase, from the time it ought to have been completed by the terms of the said agreement.

Wherefore the plaintiff demands judgment, that the said defendant may be decreed specifically to perform the said contract or covenant, entered into with the plaintiff as aforesaid, and to make a good and marketable title to the said premises, the said plaintiff being ready and willing and hereby offering specifically to perform the said contract on his part, and upon the said defendant making out a good and marketable title to the aforesaid premises, and executing a proper conveyance thereof, to the plaintiff, pursuant to the terms of said contract, to pay to the said defendant the residue of the said purchase money; or for such other or further relief as the court shall think proper to grant, with costs of this action.

(No. 9.)

For specific performance of agreement against vendor, with prayer for alternative relief in damages, if it appear that defendant is unable to convey.

SUPREME COURT-ALBANY COUNTY.

Elizabeth Brinckerhoff

agt.

Philip Phelps.

The plaintiff complains of the defendant, and alleges: That heretofore, and on the 13th day of June, in the year of our Lord, one thousand eight hundred and forty

nine, the said defendant made, executed and delivered to the said plaintiff an agreement in writing, in the words and figures following, viz:

"For and in consideration of the sum of one dollar to me in hand paid by Elizabeth Brinckerhoff, of the city of Albany, the receipt whereof I do hereby acknowledge, I do hereby agree to sell and convey unto the said Elizabeth Brinckerhoff all that lot, piece or parcel of land, situate, lying and being in the town of Stafford, Fulton county and State of New-York, known as lot No. 82 in Glen, Bleecker and Lansing's Patent, for the sum of seven shillings per acre, to be paid therefor by said Elizabeth Brinckerhoff. The said lot is to be surveyed at the expense of the estate for which I act as trustee; and the said Elizabeth Brinckerhoff is to pay for the actual number of acres contained in said lot, as shall appear by such survey, at the rate aforesaid. A warrantee deed is to be executed and delivered to said Elizabeth Brinckerhoff by the 15th day of July next, by which time said. survey is to be completed and the lot to be conveyed free and clear of all incumbrances. The sum of three hundred and eighteen dollars and twenty-five cents of said purchase money is to be paid on the execution of this contract, and the balance on the execution and delivery of the deed. “PHILIP PHELPS, Trustee, &c.

"Dated Albany, June 13, 1849."

That upon the execution of the foregoing contract or agreement, she paid to the said defendant the sum of three hundred and eighteen dollars and twenty-five cents, in full of the payment therein mentioned.

That afterwards, and prior to the month of August, in the year 1849, the lot in the agreement above set forth was surveyed and found to contain eight hundred and

thirty-five acres of land, or thereabouts, reference being had to the survey thereof now in the possession of the said defendant will more fully appear. That on several occasions thereafter the said plaintiff, by her attorney and agent, applied to the said defendant at the city of Albany, and demanded a warrantee deed for the said lot of land, according to the provisions of the agreement so made by him, the said defendant, as aforesaid, and then and there offered to pay him the balance of the purchase money for said lot on the execution and delivery of such deed, with which demand the said defendant has hitherto wholly neglected and refused to comply.

That the said defendant has hitherto wholly refused and neglected, although often requested so to do, to execute and deliver to her, the said plaintiff, a warrantee deed, or any other deed, conveying to her the said lot above mentioned, or any title whatever thereto.

That the said defendant did not, by the 15th day of July, 1849, execute and deliver, or offer to execute and deliver, to the said plaintiff a warrantee deed for said lot, so as to convey the same or any part thereof to said plaintiff.

Wherefore the plaintiff demands judgment, that the defendant execute and deliver to the said plaintiff a warrantee deed for the lot mentioned in the agreement so made and executed by the defendant, as aforesaid, so as to vest in her, the said plaintiff, the title to the same, free and clear of all incumbrances, the said plaintiff hereby offering to pay the balance of the purchase money of said lot.

And in case it shall appear that the said defendant is unable to convey to the said plaintiff the lot as aforesaid, so as to vest in her the title thereto, free and clear of all incumbrances, then that the defendant be adjudged to pay the damages which the plaintiff has sustained by reason thereof, to be ascertained as the court shall direct, together