Opinion
December 9, 1921.
Herbert A. O'Brien, for the appellant.
Philip E. Good [ John A. Bloom with him on the brief], for the respondent.
As there had been no actual tender of the price, the plaintiff properly averred that she was ready, willing and able to perform her part of the agreement, during the period mentioned in said agreement. Defendant put this in issue. There are two difficulties in appellant's position: First. This lease contained no option to continue the demise beyond the four months specified. At the time plaintiff sought to exercise her option (nearly two years after the date of this lease), she was not holding the property under the terms of the original agreement. Her continued holding over, especially after September first, by payment of a different rental, did not keep alive this option, which remained limited to the four months tenancy. ( Kerr v. Purdy, 51 N.Y. 629; 1 Dart Vendors [7th ed.], 272; 27 R.C.L. "Vendor Purchaser," § 40, p. 343.) Second. In suits for specific performance, where there has been no actual tender, the plaintiff has to establish readiness and ability to perform. (Fry Spec. Perf. [6th ed.] § 922; Eddy v. Davis, 116 N.Y. 247, 251; Rockland-Rockport Lime Co. v. Leary, 203 id. 469.) The court's finding that plaintiff was not financially able to perform, as she had averred, was, therefore, a bar.
On both these grounds the judgment appealed from should be affirmed, with costs.
MANNING, J., concurs; BLACKMAR, P.J., RICH and JAYCOX, JJ., concur upon the ground first stated in the opinion.
Judgment affirmed, with costs.