The parties entered into a contract in writing as follows, the plaintiff paying $500 on account, viz. :
“New York, November 29/05.
“Memorandum of sale of House and lot and improvements thereon of § 100 E. Broadway.
“ Size of lot 25 x 65 more or less. ■
“ 1st Mortgage $30,000.00 at 4% for about 5 five years.
“ 2nd Mortgage to be taken by the party of the first part for $14,000.00 at Q% for the term of (6) six years payable $1,000.00 one thousand dollars every 6 months or more and the usual subordination clause to be mentioned.
“ Deposit this day $500.00 receipt of which is hereby acknowledged and additional sums of deposit to be paid by the party of the 2nd part of $1500.00 on day of contract, Friday Dec. 1, 1905, at the office of Manheim and Manheim 302 Bway at 11 a. m.
“ Balance of Ten thousand dollars $10,000.00 at day of closing title March 1st, 1906.
“ Purchase ¡nice of said property is $56,000.00 party of the first part is to have the privilege to remain in the 3 three upper floors of said building to May 1st, 1906, for the sum of $250.00 Two hundred and fifty dollars.
“ EMIL BEIBSTEIN, Party of the first part or seller.
(C HEBBEW PUBLISHING CO. “ H. Dogin Vice Pres. “ M. Chinsky Treas. “ S. Werbelowsky Secty. Party of the second part or purchasers.”
This is a complete contract. It fully describes the lot to be sold, the incumbrances on the property subject to which it is to be conveyed, the purchase price and how it is to be paid, and appoints a day for the deed to be delivered and the balance of the purchase money paid. The only obscure thing in it and which makes it different to an ordinary contract for the sale of real estate is the clause that an additional sum of $1,500 is to be paid by the purchaser “on day of contract, Friday Dec. 1, 1905”. This loose phrase is interpreted by the plaintiff to mean that a contract the same in its provisions and substance as the one already signed and *278delivered, but more formal, should be signed on that day. There was no provision in the contract for a different contract. It would be entirely vain to make the same contract over again. For the defendant to refuse to sign a new contract would therefore not be a breach of the contract to convey. To make the contract over again would be useless, and to refuse to do so would be harmless. The provision for a new paper being useless and immaterial, a breach of it would be immaterial. The defendant could make himself liable to an action for the $500 already paid to him only by refusing to convey as required, and that he never did. The statement in the majority opinion that the contract made was not complete, but the parties intended or agreed that other things should be put in the new draft, is not correct, it seems to me. No oral evidence to change the contract was admissible. It was on its face complete in itself. This was not an action to reform it and as matter of fact, the parties had not agreed that any additional things should be put in the new draft.
When the parties met on December 1st the defendant prepared e a contract which contained conditions in addition to those contained in the existing contract, viz., (1) that the land should be taken subject to any nuisance clause in prior deeds, (2) that the mortgage on the property was to run “about” years, instead of “'about” five years as stated in the existing contract, and (3) that there was a tax clause in such mortgage. The plaintiff refused to sign it unless it was made to conform to the existing contract. Unless there was something substantial in the first, the changes were rather trivial. No new contract being tendered by the defendant the plaintiff demanded back the' $500 which he had already paid, and brought this action therefor.
The complaint does not allege any breach except the refusal to make the new contract, there is evidence of no other breach, and the defendant avowed on the trial that he had all the while been and was ready to make the conveyance under the contract agreed to by the plaintiff. The plaintiff never demanded a conveyance, or attended on the deed day to get a conveyance. The trial judge in his charge allowed a recovery against the defendant for refusing to make a new contract the same as the original one. The question of refusal to convey did not enter into the case at all.
*279There was no motion to dismiss or to direct a verdict for the defendant, but the question of no evidence to support the verdict comes up on the appeal from the order denying the motion on the minutes to set aside the verdict and for a new trial.
The judgment and order should be reversed.
Judgment and order affirmed, with costs.