This action was brought in partition. The complaint sets forth that plaintiff and defendant Harris Funk are seized in fee of certain property known as 952 Whitlock avenue, borough of The Bronx, city of New York; that plaintiff is seized in fee of an undivided one-half part thereof, subject to the dower right of his wife, the defendant Ida Andron, and that defendant Harris Funk is seized in fee of an undivided one-half part thereof, subject to the dower right of his wife, the defendant Rose Funk; that the premises are so situated that a partition thereof’ among the parties entitled thereto, according to their respective rights and interests, cannot be had without great prejudice to the owners thereof; and that all the parties to this action are of full age, and that the lands in question are the only ones owned in common by the parties. The judgment *263demanded is the usual one of partition, including a sale of the property and the disposition of the proceeds thereof among the parties entitled thereto.
The same state of facts has been pleaded by appellant both as a defense and a counterclaim. The learned judge at Special Term held that the defense pleaded was good. Plaintiff has not appealed, so that question is not before us. It was held, however, that the facts pleaded do not constitute a good counterclaim and defendant’s appeal raises that question alone.
The following allegations appear in the counterclaim: That on or about December 1, 1917, respondent and appellant for the purpose, among others, of acquiring a permanent residence, agreed to purchase, as tenants in common, the premises in question. This agreement was in writing and a copy thereof is annexed to the answer. Thereafter, on December 5, 1917, respondent and appellant became and still are the owners in fee, as tenants in common, of said premises, subject to the dower rights of their respective wives. Ida Andron had knowledge of and acquiesced in the provisions of the agreement and the conveyance thereunder. The premises consist of a plot of ground 25 feet in width by about 124 feet in depth, upon which is erected a three-story brick building, containing two flats. Upon making the agreement, appellant and respondent were each in occupation and control of one of the flats for residential purposes, and they remained in possession thereof thereafter. The written agreement between respondent and appellant contains the following provision: “And it is further agreed that should either of the parties hereto desire to sell his interest in the said property that he shall give written notice of such desire to the other, and that such other party shall then have the privilege of purchasing the one-half interest of the retiring party, and that the amount to be paid for the one-half interest of the retiring party shall be computed upon the basis that the value of the joint property shall be $7600.00; and that the amount of cash to be paid to the retiring party shall be one-half of the equity in such property after deducting all encumbrances that may be chargeable against such property at the time. Should the remaining party elect to purchase the interest of the retiring *264party upon such terms he shall give notice of such election in writing to the retiring party within ten days after he shall receive such notice, and the closing of title shall be fixed for a date which shall be thirty days after the notice of election to buy.”
It is then alleged in said counterclaim:
“ Twelfth. That on or about the 24th day of October, 1919, the plaintiff caused to be served on this defendant the summons and complaint in this action and said complaint demanded judgment, among other things, that the said premises known as No. 952 Whitlock Avenue be sold by or under the direction of the court and that after the paying of certain proper charges against the premises the residue of the moneys derived upon such sale be divided equally between the plaintiff and this defendant.
“ Thirteenth. That this defendant thereupon and on or about the 30th day of October, 1919, gave notice in writing to the plaintiff of his election to buy the same upon the terms aforesaid and in said notice fixed the office of Maurice B. & Dan’l W. Blumenthal, No. 35 Nassau Street, Borough of Manhattan, City of New York, as the place and the 29th of November, 1919, at 10 A. m. as the date for the closing of title.”
It is further alleged that appellant has duly performed all the conditions of the contract on his part and is ready to fulfill the same and is ready and willing, for a good and proper deed, to pay for the respondent’s interest on the basis of a valuation of $7,600, the amount to be paid by him being one-half of the equity in the premises after deducting all incumbrances that may be chargeable against such property at the time of the conveyance, but plaintiff has refused to deliver a deed of conveyance of his interest either on November 29, 1919, or at any other time.
The judgment demanded is: (1) That the complaint be dismissed, with costs; (2) that the plaintiff specifically perform said agreement and make, execute and deliver to appellant his full covenant and warranty deed of his interest in said premises, and that on payment of the amount due plaintiff on said agreement, the plaintiff be directed to deliver the said deed to the defendant free and clear of all incumbrances, except mortgages referred to in said contract, or so much *265thereof as remains unpaid, and that Ida Andron be directed to join in the conveyance of said one-half interest of the plaintiff and to convey her dower interest therein upon payment to her, out of the amount due plaintiff, of the value of said interest as the same shall be determined by the court, and that if for any reason said dower interest cannot be so conveyed that provision for the same be directed by the court.
The question involved in this appeal is whether the commencement by plaintiff of this action for the partition of the real property in question, the sale of the interests of all the parties therein and the division of the proceeds of a sale between them according to their interests, is the giving of a written notice of plaintiff’s desire to sell his interest in the property, as provided by the agreement. I am of opinion that it is not. We are not now concerned with the question of whether plaintiff can violate or evade the provision in question. The learned court at Special Term has held that the facts alleged constitute a good defense to this action.
The question now is, can appellant enforce his rights under the agreement by compelling "plaintiff to sell his interest to appellant although he has given him no such notice as the contract requires. Appellant’s only right to specific performance rests upon the provisions of the agreement. He could not compel plaintiff to convey his half interest to him save by virtue of some right so to do conferred upon him by respondent. That right is a purely contractual one. It exists solely by force of the contract itself. Appellant’s privilege of purchase given thereby arises only when respondent has given him a written notice of his desire to sell his interest in the property, and such notice must, it seems to me, be given under the contract and in compliance therewith. This action was brought in derogation of the contract. The effect thereof is not merely to have respondent’s interest sold, but that of appellant and of the wife of each party. Respondent did not desire to sell his interest pursuant to the contract but outside of, and contrary to, the same. It may well be that he cannot maintain this action in the face of the agreement and still the effort to avoid its force and effect would not confer upon appellant the right to treat even a futile attempt to evade a contract as an expressed desire to act thereunder. *266My conclusion is that the bringing of this action for partition was not the giving of the written notice of respondent’s desire to sell his interest provided for in the agreement; that appellant’s right to specific performance exists only by virtue of such agreement; and that the requisite notice specified there not having been given, appellant has no right to specific performance.
The order appealed from should be affirmed, with ten dollars costs and disbursements.
Order, so far as appealed from, reversed, with ten dollars costs and disbursements, and demurrer overruled, with ten dollars costs, with leave to plaintiff to withdraw demurrer and to reply on payment of said costs.