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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).
For the specific performance, by lessce against lessor, of con
tract 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 — to lease him the same for the term of
years [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
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 agreement.
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 forth with 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
agt. 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
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.
deed of conveyance executed by said plaintiff and his wife, on or about the date aforesaid, to said defendant, to which plaintiff begs leaves to refer.
That said conveyance, on or about said date, was duly delivered to and accepted by said company, and the said company thereupon entered upon the possession of the right of way and land so conveyed, and continued to occupy and possess the same, exclusively for the uses and purposes of said road, up to the period when said road was completed and opened for public transportation of freight and passengers, which plaintiff alleges was sometime in or about the month of August, 1853, and subsequent to that time and hitherto the defendant has still continued in the exclusive use and occupation of said lands and right of way for the use of said road.
That in and by said indenture or conveyance of the said land, and in consideration thereof, the said defendant, the Albany Northern Railroad Company, did covenant and agree to and with the said plaintiff, among other things, to the effect that the said Albany Northern Railroad Company should construct and maintain two good farm crossings over said railroad, one of which was to be constructed in continuation of the one then already constructed by the Troy and Boston Railroad Company, and the other to be constructed near said Akin's northern boundary line, and that said Albany Northern Railroad Company should also construct a passage under “said (Albany Northern) railroad, sufficiently large to admit of a load of hay or grain to pass through; the surface of the road to be at least three feet above the level of the surface of the water in the Nipmush creek, and to be twelve feet wide from the bank of the creek to the abutment." That although he, the said plaintiff
, did execute and deliver said conveyance to said defendant, and did perform, all and singular, the covenants, conditions and agreements on his part, mentioned therein to be performed, yet that said defendant has not performed or kept the conditions, covenants or agreements on its part, mentioned in said indenture or conveyance to be by it performed and kept, although a reasonable time, as the plaintiff alleges, has long since elapsed, and the defendant has been repeatedly requested by the plaintiff, or on his behalf, to perform and carry out its said agreements and covenants; but has made default therein, and has neglected and refused, and still neglects and refuses, to perform or carry out said covenants and agreements in the following particulars, to wit: that said defendant has not constructed or maintained any farm crossing whatever over the line of said road running through plaintiff's said lands, and has not constructed a crossing, or maintained one, in continuation of the one already constructed by the Troy and Boston Railroad; and has not constructed or maintained another near said Akin's northern boundary line, and has not constructed a passage under said (Albany Northern) railroad, of any capacity, width or character whatever, either sufficiently large to admit a load of hay or grain to pass through, or otherwise, or any road of any description whatever.'
Wherefore the plaintiff demands judgment against the defendant, that the said defendant may be adjudged specifically to perform his said contract, covenant or agreement with the said plaintiff, and may be adjudged to construct and maintain the said crossings over said road in a good, substantial and sufficient manner, at the places mentioned in the said agreement or conveyance, and to construct, in
| As to assignment of breaches in pleading a bond, other than for payment of money, or other agreement or covenant, see Pleadings, pp. 238, 239.