The action is to recover of the vendor the amount paid by the vendee on a contract of purchase of real estate, and the expense of examining the title, and the plaintiff has judgment. The complaint alleges that the defendant was unable to convey a good title, that the deed day was several times adjourned to enable it to perfect its title, that the last time it was so adjourned under an agreement between the parties for a valuable consideration that if the Title Insurance Company of Mew York should not insure the title, the amount paid on the contract and the plaintiff’s expense of examination should be paid by the defendant.
The trial court found and adjudged that the title was all the while good, but gave judgment for the plaintiff on the said agreement, which was in writing. There was no consideration to the defendant for the agreement. The adjournment was no consideration to the defendant, but the contrary. It tendered a good title and needed no adjournments. They were caused by the plaintiff and taken by mutual consent only to enable the plaintiff to satisfy itself further about the title, If the said agreement were mutual, *583viz., if the defendant was released from the obligation to convey, as well as the plaintiff from the obligation to take, if the title company would not insure, there would be reciprocal considerations; but it is not. It left the plaintiff free to enforce the contract of sale, if it chose to do so, even if the title company should refuse to insure. That there was no other consideration is conceded.
The judgment should be reversed.
Jenks and Miller, JJ., concurred; Hooker and Rich, JJ., dissented.
Judgment reversed and new trial granted, costs to abide the event.