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. (No. 10.). For specific performance against vendor and subsequent purchaser, 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 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, This expression, though hypothetical in form, may be properly used. It is not considered as hypothetical pleading. (See on this subject Pleadings, pp. 531, 532.) and hereby offering specifically to perform the said agreement in all things on his part, and to pay to the defendant, A. B., the purchase money, on receiving the title to said premises. Or, if it should appear that said B. C. is a purchaser without notice, then that said defendant, A. B., may account for and pay to the plaintiff the difference between the price stipulated in the said agreement and the sum at which he sold the same to the said B. C.; or for such other and further, &c., (as in No. 1). (No. 11.) For the specific performance, by lessee against lessor, of contract for the lease of real estate. 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 farm of land, situate, &c., [describing it generally], and being willing and desiring to let the same, agreed in writing with the plaintiff, on the day of years to lease him the same for the term of. [stating the substance of the agreement, or setting it forth in hæc verba]. That the plaintiff, in expectation and confidence that a lease would have been made and executed to him of the said premises, pursuant to the terms of said agreement, entered upon a portion of the said premises, and bestowed labor and expense thereon, to a considerable amount, in repairing the fences and preparing the same for cultivation. That he has always been ready to perform his part of the said agreement, and accept a lease of the said premises, pursuant to the terms thereof. That he caused a draft of a lease, pursuant in all respects to the terms of said agreement, to be drawn, and on the day of tendered the same to the defendant for his acceptance, and to be executed by him, but said defendant refused to accept or execute the same. That he has frequently since, in a friendly manner, by himself and his agents, applied to the defendant and requested him to make and execute to the plaintiff a lease of the said premises, conformably to the said agreement, but said defendant refuses to comply with such requests, and refuses to execute any lease whatever of said premises to the said plaintiff, or to perform or fulfill the said agree ment. Wherefore the plaintiff demands judgment against the defendant, that said agreement be specifically performed and carried into execution, and that the defendant be adjudged to execute a lease of the aforesaid premises, according to the terms of said agreement, and forthwith deliver to him the full possession thereof, for and during the term aforesaid; or for such other and further relief [as in No. 1]. (No. 12.) For specific performance against a railroad company of covenants in a deed to construct certain crossings over, and a tunnel under, said road running through plaintiff's lands, with a prayer for damages sustained by reason of a breach of such covenants.1 SUPREME COURT-RENSSELAER COUNTY. Justus H. Akin The Albany Northern Railroad Company. The plaintiff complains of the defendant, and alleges the following facts, constituting his cause of action: That said defendant is a railroad corporation, duly organized under the statutes and laws of this State. That on or about the 23d day of July, 1852, the plaintiff granted, bargained and sold to the defendant a right of way for the railroad of the defendant through a portion of the farm of the plaintiff on which he then and now resides, lying and being in the town of Pittstown, in the county of Rensselaer and State of New-York, which right of way is more particularly specified and described in the 1 Pending the litigation, the road was sold under mortgage, and subsequently passed into the hands of a new corporation, which was made a party to the suit on an amended complaint, similar in all respects to this. On demurrer by the first company, it was held to be improperly joined as a party, having parted with all its interest in the action. The action was continued against the second company, and was sustained on the trial at special term before Justice GOULD, the original covenant or condition in the deed being held to run with the land, and a judgment was ordered for specific performance, with damages for breach of the covenant. The case has been appealed, and is now pending in the Supreme Court. |