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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.

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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 fortynine, 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, fc. 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 with the costs of this action; or for such other or further relief as the court shall think proper to grant.

P. CAGGER

Plaintiff's Attorney.

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For specific performance against vendor and subsequent pur

chaser, with notice of plaintiff's right under prior contract of sale; asking relief in the alternative that subsequent purchaser surrender the premises to plaintiff, or, if he had no notice of the contract, that the vendee account to the plaintiff for the difference in price.

Title of the Cause.

The plaintiff complains of the defendants, and alleges the following facts, constituting his cause of action: That the defendant, A. B., of, &c., was, on and before the day of —, seized and possessed of a certain farm of land, particularly described in the agreement hereinafter set forth, and being desirous to dispose of the same, entered into an agreement with the plaintiff for the sale thereof to him, which agreement was reduced to writing and signed by the said defendant, A. B., and the plaintiff, and delivered on the day it bears date, and is in the words and figures following, to wit, [set forth the agreement]: as by the said memorandum of agreement, when produced, will appear. And the plaintiff further states, that on or about the

day of - -, and before the day fixed for completing the said agreement, the plaintiff called upon the said A. B. and offered to pay him the purchase money

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mentioned in said agreement for said farm, and that on the day mentioned in said agreement, and repeatedly since that time, he applied to the said A. B. and offered him said purchase money, and requested him specifically to perform his said agreement; but that said A. B. refused, and ever since has refused and still refuses so to do.

That the said A. B. has since actually sold and conveyed the said farm and premises to the said defendant, B. C., at an advanced price, and has surrendered the same to the use of the said B. C., his heirs and assigns, and the said B. C. has been admitted to the possession thereof, on such surrender.

And the plaintiff further alleges, on his information and belief, that before such conveyance and surrender of said premises to the defendant, B. C., and before he, the said B. C., paid his purchase money for the same, if he has in fact paid such purchase money, the said B. C. had notice, or reasonable cause to suspect or believe, that he, the said A. B., had entered into an agreement with the plaintiff for the sale of said premises.

And the said plaintiff further alleges, on information and belief, that said A. B. hath indemnified or undertaken to indemnify said B. C. against the claims of plaintiff, in respect to his said agreement.

Wherefore the plaintiff demands the judgment of this court, that the said agreement so made between the plaintiff and said A. B. may be specifically performed; and that said defendant, B. C., may be adjudged to surrender the said premises to the plaintiff, and execute a quit-claim deed thereof to him, he the said plaintiff being ready and willing,

1

1 This expression, though hypothetical in form, may be properly used. It is not considered as hypothetical pleading. (See on this subject Pleading8, pp. 531, 532.)

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