Mr. Justice Laughlin states that the decision in the case of Anderson v. Steinway & Sons (178 App. Div. 507; affd., 221 N. Y. 639) is controlling in the present case and that “ it necessarily. follows that the defendant was not obliged to take the title tendered either on the 1st or the 31st of August.” I do not concur in this conclusion. The Anderson case came before this court on an appeal from an order granting plaintiff’s motion for judgment on the pleadings, consisting of the complaint, answer containing a defense and counterclaim, and demurrers to the latter for insufficiency. The present case is an appeal from a final judgment after the trial of the issues raised by the complaint, answer containing substantially the same defense and counterclaim, the allegations of which were controverted by replies. In the Anderson case the facts alleged in the defense and counterclaim were admitted. Here they are controverted, and the evidence tending to support or disprove the facts is before us. The authority of the Anderson, case was closely limited by the Court of Appeals to one proposition, for the opinion of that court states: “ It appears from the contract in controversy and the pleadings that it was understood by the contracting parties to be wholly dependent upon the defendant obtaining title to plaintiff’s and other real property, mentioned in the contract, the title to all of which was to be taken solely for a purpose which has either been prevented by the ordinance in question or can only be carried out after successfully maintaining in the courts that such ordinance is unconstitutional, and it would be inequitable in this case to decree specific performance. The opinion of Justice Scott of the Appellate Division, so far as it discusses the question upon which we place our decision, is approved.”
From the admitted facts in that case it appeared that it was understood that the property was taken solely for use for business purposes which had been prevented by the building zone restriction, if valid, or, if not valid, it would require action in the courts to reheve the property from the inhibition and that the defendant should not be compelled to take property that he could not use for the sole purpose for which it was purchased or to buy a lawsuit. Mr. Justice Scott in his opinion stated: “ Neither party to the contract could, when *539it was made, have reasonably anticipated that before the time came for closing the title the law-making power would step in and impose such restrictions upon the use of the property as would render it useless to defendant for the only purpose for which it sought to acquire it.” (p. 515.) And again: “ After the contract was made the law-making power steps in, and takes action which makes it impossible for the plaintiff to convey what she had intended and expected to convey, and for defendant to acquire what it had intended and expected to acquire.” (p. 514.)
If the facts upon which the decision in the Anderson case was predicated were not established by the proof in the present case, then the two cases are clearly distinguishable and the Anderson case would have no controlling effect on the decision in this case.
First. Was it an essential element of the contract that it and the other property could be devoted to a business use? There is no claim made that the contract does not contain the entire engagements of the parties, or that anything was omitted therefrom by mutual mistake or by fraud. It is the usual contract for the sale of real estate. The only unusual feature is the reference to a contract simultaneously made with another party for the purchase of her real estate and making the performance of this contract dependent, not alone on the marketability of the property therein described, but also on the marketability of the other property. The contract is expressed in clear and unambiguous terms. There is, therefore, no room for construction or resort to prior negotiations to ascertain the intention of the parties. It is well settled that it is not in the province of the court to change the terms of a contract which has been entered into, even though it be a harsh and unreasonable one. Nor will the dictates of equity be followed if by so doing the terms of the contract are ignored, for the folly or unwisdom of a contract is not for the court to pass upon. Its terms, however onerous they may be, must be enforced according to the clear meaning of the language used, and the intention of the parties using the language must be determined by its contents alone. The contract in suit was prepared with care and deliberation; several proposed contracts were prepared and rejected. This contract was adopted by the parties as expressive of their deliberate intention. The court cannot make a new contract *540for the parties nor read into this one terms and conditions that the parties have not expressed. If, as claimed by the defendant, the sole object of buying this property was to erect upon it a business building, and if, unless it could be used for that purpose, it was not to be required to take title, a provision to that effect should have been incorporated in the contract. In the absence of such a provision, I can find no justification in law or equity for refusing specific performance on the ground that such was the unexpressed understanding of one party.
In this case there was no change in the law between the time of the signing of the contract and the closing of title, nor was there any restriction put upon the use of the property that could not have been reasonably apprehended. The Legislature in 1914 conferred the power on the board of estimate and apportionment of the city of New York to divide the city into districts and regulate and restrict the location of buildings designed for specific uses within such districts. (Laws of 1914, chap. 470, adding §§ 242-a and 242-b to the Greater New York Charter.) In 1916 this act was amended. (Laws of 1916, chap. 497.) * The amendment to section 242-b, which is applicable herein, merely delegated the further power to the board, from time to time, to amend, supplement or change the regulations or districts. . The statute provided for the appointment of a commission to recommend the boundaries of districts and appropriate regulations and restrictions to be imposed therein; that the commission shall make a tentative report and hold public hearings thereon before submitting its final report to the board; that the board shall not determine the boundaries of any district nor impose any regulations or restrictions until after the final report of the commission; that after such final report the board shall afford persons interested an opportunity to be heard, at a time and place to be specified in a notice of hearing to be published for ten consecutive days in the City Record. The board of estimate and apportionment appointed the commission on June 26, 1914, and the commission made reports to the board on March 10, 1916, and June 2, 1916. Therefore, although the building zone resolution was not finally adopted until after the signing of the contract for *541the sale of the property in suit, there was no change in the law, nor sudden or unexpected action by the public authorities restricting the use of the Fifty-eighth street property. It is to be presumed that the board and the commission proceeded regularly and in exact compliance with the statute. Then there must have been public hearings before the commission between March 10, and June 2, 1916, and public hearings before the board of estimate and apportionment between June 2 and July 25, 1916, when the building zone resolution was adopted. The act authorizing the zoning of the city was passed more than two years before the contract was signed. That the act was to be put in effect was open and notorious. The- final report of the commission had been delivered to the board of estimate and apportionment twenty-seven days prior to the signing of this contract. The slightest investigation would have shown that the action of the board was imminent, and also would have disclosed the fact that the Fifty-eighth street property was within the district restricted to residence purposes. If this restricted use interfered with the purposes for which the defendant desired the property, the failure to provide against it in the contract must be chargeable to its own inattention and neglect.
Nor can it be claimed that the building zone resolution was an incumbrance on the property so that it would render the title unmarketable. The law authorizing the division of the city into building zones was an exercise of the police power of the State, and all property is subject to such restrictions as the State in its sovereign power may deem necessary for the health, safety or morality of the people. Under this power, laws have frequently been passed regulating the materials which shall be used in buildings, prescribing the height of buildings, and prohibiting the erection of buildings for certain purposes within specified districts. Lands are held and contracts with respect thereto are made with the knowledge of and subject to this power in the State to regulate the use of. the property. This regulation means that the owner is required to exercise his right in conformity with the demands of the public welfare, while at the same time he is left in the substantial enjoyment of his property with its essential incidents. That a valid regulation under the police power does not create *542an incumbrance, or render the title unmarketable, follows as a necessary conclusion; for if it did, it would be a taking of the property without compensation and would for that reason be void. (Forster v. Scott, 136 N. Y. 577.) In the case of Anderson v. Steinway & Sons (supra), Mr. Justice Scott stated: “ So if defendant had contracted to buy the property in question here after the so-called zoning resolution had been adopted by the board of estimate and apportionment, and had become a part of the public law, it may well be' that it could not be heard to object to taking title because of the restrictions imposed upon the use of the property by such resolution.” We have above pointed out the distinction between the present case and the Anderson case in this regard, that the proof in this case showed that the right to regulate had been conferred on the municipal authorities long prior to the making of this contract, and that this specific regulation was so notorious and imminent that the parties were chargeable with notice of it and must be held to have contracted with this regulation in mind. Hence they are in the same position as though the contract had been made after the zoning resolution was passed. The only case which, to my knowledge, holds a valid regulation, created under the police power, an incumbrance on property which would excuse performance of a contract made after the enactment of the regulation, is Lincoln Trust Co. v. Williams Building Corporation (183 App. Div. 225), recently decided by a three to two vote of my associates, and which, for the reason above state, I cannot accept as controlling.
In my opinion, on the 1st day of August, 1916, the plaintiff and Mrs. Flagg tendered deeds which conveyed the property to the defendant in exact conformity with the terms of the written contract. The refusal of the defendant to accept the tender and perform on its part was unjustified.
At the time of the trial the excuse that the defendant had given for refusing to perform had been removed. On March 23, 1917, the board of estimate and apportionment modified the building zone resolution by changing Fifty-eighth street between Sixth and Seventh avenues from a residential to a business district. The plaintiffs thereupon served a supplemental reply setting up this fact. The defendant did not serve a supplemental answer alleging changes of condition *543which might reheve it from being at this time compelled to perform. As the case stood at the opening of the trial, therefore, the condition was as follows: The plaintiffs were demanding specific performance of the contract. The defendant had set up the restriction on the use of the Fifty-eighth street property by the building zone resolution, claiming that by reason thereof the plaintiffs could not perform the contract, but that the defendant was at the time of closing title and still is ready and willing to perform. The objection to the title had been abrogated. It was stipulated on the trial that the plaintiffs and Mrs. Flagg have at all times been ready and willing to deliver to the defendant the deeds of the respective properties in the form provided in their respective contracts, duly executed and acknowledged by them respectively and with proper revenue stamps attached to the deeds, upon the payment of the balance of the purchase price. Therefore, it was not necessary to make a further tender of performance. If the zoning resolution was to be deemed an incumbrance, it had been removed at the time of the trial. It is well settled that a purchaser will be required to perform specifically if the title is good at the time of the trial, even tho.ugh defective at the time fixed for the performance of the contract. (Baldwin v. Salter, 8 Paige, 473, 474; Dutch Church in Garden Street v. Mott, 7 id. 77, 85; Brown v. Haff, 5 id. 235, 241; Jenkins v. Fahey, 73 N. Y. 355, 359; Schmidt v. Reed, 132 id. 108, 115; Haffey v. Lynch, 143 id. 241; Pakas v. Clarke, 136 App. Div. 492, 493; affd., 203 N. Y. 534.) In such cases performance is decreed as of the date of the judgment, or as of the time when the defect was cured, and not of the original date of closing the title under the contract. The prevailing opinion acknowledges the rule, but says it should not be given effect because of changed conditions; not that the defendant has purchased other property, but because it would now, owing to the advance in the cost of materials, find it more expensive to build, and if it desired to borrow money for building it would find it difficult. No such defense was pleaded, but the court felt it would be inequitable under such circumstances to enforce the contract, and has denied the plaintiffs relief and adjudged a hen upon the premises for the amount of the down payment and directed a foreclosure and sale. Why a *544court of equity should feel moved to these extremes in behalf of this defendant is beyond my comprehension. The plaintiffs have ever been ready, willing and able to carry out the , contract according to its exact terms. In order to be able to do so, it was necessary that the premises be vacated by its occupants. The plaintiffs expended the sum of $7,533.32 in securing the surrender of unexpired leases of premises 109 and 111 West Fifty-seventh street and in moving and storing goods of plaintiffs from 113 West Fifty-seventh street. To ■ secure another residence for their occupancy, they entered into a lease of another residence for a term of five years at an annual rental of $7,000. At the time of the signing of the contract there were certain mortgages upon the plaintiffs’ premises, which were not due until dates subsequent to that fixed for closing of title, which defendant required to be satisfied prior to the delivery of the deed. In order to be in position to carry out the terms of the contract, the plaintiffs were required to and did pay additional interest and expenses amounting to $1,005.42. The plaintiffs also became and are obligated to pay the usual broker’s commission upon the sale in the sum of $2,800. This loss they must bear, and in addition return the down payment with interest. Because, jfirst, the purchaser intended to use the property for a purpose not disclosed by the contract, which use was about to be prohibited under authority of existing law; and if the ability to make such use of the property had been made a condition precedent to the taking of title, the sellers might and, as the fact of the impending imposition of the restriction was notorious, in all probability would have declined to sign the contract. Second, because the conditions as to material and money market have changed;—a defense of doubtful potency if pleaded, but which was not even pleaded. In my opinion, such a result is contrary to the equities of the case.
The judgment should be reversed, with costs, and a specific performance of the contract decreed as of August 1, 1916, with costs.
Smith, J., concurs in result.
Judgment affirmed, with costs.
Since amd. by Laws of 1917, chap. 601.— [Rep.