I concur in the prevailing opinion so far as it holds that the referee was authorized to adjourn the sale, and agree with the reasons assigned for such holding.
I am, however, unable to concur in the prevailing opinion so far as it holds that the facts which appear in this record were sufficient to relieve the purchaser from the fulfillment .of his contract to purchase. The adjournments which had been had prior to the eighteen th day of September were by consent of the parties and to enable the plaintiff to perfect title to the premises or to procure a policy of insurance, insuring the same. By agreeing to accept a policy of title insurance and allowing, the plaintiff to go, to the trouble and expense of procuring one, and negotiating for another when further objection to the title was made, the purchaser waived his,right to a strict performance of the contract of purchase, and of his right to *550object to such title, based upon defects then known to him which were subsequently cured. Under these circumstances the plaintiff was entitled to a reasonable time in which to perform the modified agreement, either by procuring a policy of insurance covering the defect, or by curing such defect. The defendant could not abruptly and arbitrarily refuse to grant such reasonable time. He was required, in order to terminate the plaintiff's right to perfect the title, to give notice that unless plaintiff performed within a time limited, which must be reasonable, the purchaser would hold himself relieved from the contract of purchase. (Schiffer v. Dietz, 83 N. Y. 300; Myers v. De Mier, 52 id. 647; Harris v. Troup, 8 Paige, 423.) Ho notice of any kind was given by the purchaser terminating the negotiations which were in progress at the time when the adjournment was had on the eighteenth of September. On that day, title not having been perfected or a policy of insffiranee given, the purchaser appeared before the referee, refused any further adjournment, and objected to the title, for the defects which had prior thereto been the subject of negotiations. The referee adjourned the matter for a week, but on the adjourned day the purchaser did not appear; and without further notice made this motion. Having taken this position, the plaintiff was relieved from tendering a conveyance of the dower interest of the widow., In fact, at this time an assignment of such interest had been made to "a pe.rson who Stood ready and willing to convey the'same to the purchaser. As, however, the latter had arbitrarily terminated the negotiations, a tender of the conveyance was not necessary to place the purchaser in default. It was sufficient that the plaintiff was able to cure the defect if the purchaser would take the same. So far, therefore, as the dower interest is concerned, the infirmity in the title was cured, and the purchaser could' not refuse to complete his purchase based upon such ground.
Concerning the objection that by'the will of Cain the equity of redemption was in certain trustees named therein, iiot made' parties to the action, it devolved upon the purchaser to prove facts sufficient from which the legal conclusion could be reached that' the title was invalid on this account. He was bound to show facts, from which it would appear that a substantial defect in the title existed. (Platt v. Finch, 60 App. Div. 312; Goodwill v. Crooks, 58 id. 464; *551Lenehan v. College of St. Francis Xavier, 51 id. 535.) The only proof upon this subject is found in the affidavit of the purchaser, to the effect that it appeared from the records that there was a will of Michael Cain, which had been filed for probate in the Surrogate’s Court of the county of New York, and that by the terms of the will he had left all his real estate to his executors in trust for an adopted daughter, until she became of age, and to her children in fee, and if she died without issue the property was to be distributed as though the testator had died intestate.
It seems to me that this proof amounts to no more than a mere assertion, and fails of showing that there was, in' fact, any will of Michael Cain. The will itself is not produced. It is not shown that Cain, in fact, ever signed any will, or that it was executed as required by law. The record is not produced, nor is any quotation made from the will or statement of any kind from which the court can see that there was a valid will executed by Michael Cain.
The mere assertion of the existence of such a document does not establish it, nor is it sufficient from which the court could draw' an inference, either as matter of fact .or as conclusion of law that there was a will affecting the title to the property. It may be conceded that a paper had been filed for probate in the Surrogate’s Court, but no further proceedings had been taken thereunder, and the testator had been dead for nearly a year and a half, and further testimony tends to show that if any steps were contemplated to have been taken thereunder they have been abandoned. If force is to be given to the rule of law which requires that the purchaser shall specify the defect and sustain it by proof, it would seem that he has failed, so far as is disclosed by the present record.
In addition to this, it appears that the executors, who, the affidavit of Cohn states, were the trustees, were in fact made parties by name and were served by proper publication of the summons as unknown persons, as provided by section 438, subd. 1, of the Code of Civil Procedure.
The designation of the executors was sufficient to constitute them proper parties, even though they occupied the dual relation of executors and trustees (Knox v. Met. El. R. Co,, 58 Hun, 517); and service in this manner was authorized. (Abbott v. Curran, 98 N. Y. 665; Moran, v. Conoma, 27 J. & S. 101.)
*552For these reasons I think that the purchaser did not show such a defect in the title as entitled him to be relieved from his purchase.
The order should, therefore, be reversed, with ten dollars costs and- disbursements, and the motion denied, with ten dollars costs, and the purchaser directed to complete his purchase.
Order affirmed, with ten dollars costs and disbursements.