This is a dispute over' surplus moneys, arising from a mortgage ' foreclosure between the appellant, Susan S. Wilson, holder-of the . legal title, and the respondent, Charles Rosenberg, who claims to ' have been the .equitable owner of tlie property by virtue of a contract of purchase and sale made • between him and said appellant. The facts are undisputed. The referee found that the appellant, . the owner pf flip property, made a written contract te sell the game *555to the respondent. This contract was subsequently modified by a parol agreement made necessary by a mutual mistake respecting certain boundary lines and by the existence of the mortgage the , foreclosure of which resulted in said surplus. Said parol agreement provided for a conveyance of a larger tract to said respondent and a reconveyance by him to the appellant of a portion thereof freed from said mortgage, but subject to a new mortgage to be given by said appellant. It was also agreed that the appellant should reset the fences around the part to be' reconveyed to her by April 1, 1905, and that if she did'not the respondent might do so'at her expense, and furtliér that, on the closing day, March 25, 1905, she would give the respondent a Writing to that effect. On the closing day she tendered performance' of the modified agreement in all respects save the- giving of a writing evidencing the fence agreement, and the respondent refused to accept a conveyance unaccompanied by said written' agreement. It is agreed on all hands that the respondent’s'right to the surplus moneys depends upon whether lie-could have maintained an action for specific performance; if so, it matters not that the res has been converted into money.
Equity would not decree specific .performance of the fence agreement in and of itself, and of course would not decree specific per-, formance of an agreement to put that agreement in writing. If the parol agreement was good, an action at law would be entirely adequate to redress its breach, and if it was not good, equity could not make it so by decreeing that it be put in writing. The title agreed, to be conveyed to the respondent did not' depend in the slightest upon said agreement, because the property to be conveyed was specifically described, and there- can be no doubt that the fence agreement, though not put in writing, would have survived the acceptance of the deed by the respondent, unless such deed was accepted as a complete performance of said contract, which would of course depend upon the intention of the parties. (Witbeck v. Waine, 16 N. Y. 532; Morris v. Whitcher, 20 id. 41; Sage v. Truslow, 88 id. 240; Disbrow v. Harris, 122 id. 362.) The fence agreement Was but one of several stipulations of the contract as. modified by the parol agreement. If that parol modification was not good for not being in writing, of course equity would not cleeree specific performance, If jf was goad, the performance of *556one of its stipulations did not' extinguish, the others, and the -delivery of the deed which the appellant tendered would have been only a -part .performance unless accepted as a complete performance, because under such .circumstances there is ho presumption that one stipulation _ is satisfied by the performance. of another stipulation embraced in the' same contract. . The learned justice. at Special Term 'distinguished the cases cij:éd supra, by-the fact that the stipulation which survived part performance was embodied in an- original-written 'contract, but I fail to see -how that changes the .situation. The contract before us is the modified contract, and the rule of law cannot be--different because of the fact that the-parties saw-fit to, allow the modifications to rest in parol. As the respondent saw fit to refuse performance of what equity would compel, unless the stipulation inspecting the fence agreement were performed, lie thereby made liis election to resort to an action at -lawfor a redress of the' breach of contract. I am not saying that he could.have been compelled to accept a deed without the collateral, written fence agreement,'but that if. he wanted his bargain he should have accepted the performance tendered and sought redréss in an- action at law if the fence was not removed as agreed Upon. That this was his. proper course was suggested, if not actually- decided, by the judgment in Sokolski v. Buttenwieser (96 App. Div. 18; affd., 183 N. Y. 557), fur I do not. see that the situation is at.all changed by the.fact .that there was an agreement to put the oral stipulation in .writing at the time of closing of title. As the respondent^ course ■ left him only an- action at law for damages ■ for breach of the contract, the appellant Was entitled to the surplus moneys.
We have assumed that the alleged'modification by'parol was in . fact a modification and not. the- making of a'new contract which was Void for not being in writing.
The- order- should be. modified accordingly and the appellant should have the costs of the proceeding and of this appeal. .
Jenks, Hookek, Gtaynob and Rich, JJ., concurred.
Order modified in'accordance with opinion of Milleb, J,,.and as modified affirmed;, with costs of the proceeding and ten dollars costs and. disbursements of" this appeal -to the appellant, Order to be getiled befoi’e Mb Justice Míller,