I concur in the conclusion arrived at by Mr.' Justice Barrett, as I think, upon the evidence, there was at least a question for ..the jury to determine, whether or not the closing of the title had been adjourned until half-past twelve, at the office of the attorney for the plaintiff, and whether, at such adjourned hour, the .defendant appeared ready to complete his contract. It is true that the plaintiff did, at the time and place mentioned in the contract for the completion thereof, make what I consider to be a sufficient tender; but, if subsequent to that, there was an adjournment to a future time and place, siicli adjournment would be a waiver of the tender already made, and then, under the rule stated in Ziehen v. Smith (148 N. Y. 558), before either party would be in default, a new tender Would be required.
As to the objections to the plaintiff’s title, they were evidently of a character which could have been readily obviated. And so far as the interest upon the mortgage held by the insurance company being at six per cent instead of five per cent, it had been executed under an agreement-by which the interest was to be reduced when the houses were completed. That agreement had been executed by a verbal understanding and the receipt of five per cent for two years; and the evidence is, that the company was quite willing to. give a formal agreement, and did subsequently give such an agreement. The' mortgage, however, had but few days to run, and the difference in the interest would 'be quite small and not material.
■Judgment and order reversed and new trial ordered,, with costs to appellant to abide event..