The action here was for specific performance of a real estate contract. It is claimed that defendant agreed to sell to the plaintiff and plaintiff agreed to purchase certain real property. The answer is a general denial. The case was tried at Special Term and judgment was found for the plaintiff in which specific performance of the contract was directed.
The proof shows that plaintiff and defendant entered into an agreement whereby defendant, the owner of premises known as 234 Bradhurst avenue, in Manhattan, N. Y., agreed to sell to plaintiff this property for $58,000. The consideration was to be paid partly in cash and partly by taking the property subject to a then existing first mortgage and accepting a second mortgage for the balance. When this agreement was signed, plaintiff gave his check to defendant for $500. The agreement provided, however, for a more formal contract which later was to be executed. The formal contract was sent to the defendant on August 30, 1923, with a request that she sign it, which she refused to do. The memorandum which is claimed to be a full and complete contract contains all the necessary requirements for a sale of land, and is as follows: • “ Aug. 30, 1923.
“ Received from A. S. Roberts Five Hundred ($500) Dollars on account of purchase price for the property, 234 Bradhurst Avenue, N. Y. City. Terms and conditions are as follows: Price $58,000.00. First mortgage $28,000.00, Second Purchase Money mortgage $20,000.00 at 6% for ten (10) years from date of Closing of Title. (Seller has the option to have the second mortgage amortized at the rate of $1,000.00 per year).
“ Additional One Thousand ($1,000) Dollars to be paid on the signing of the contract. Contract to be for Sixty (60) days. Eighty-Five Hundred ($8500) Dollars to be paid on the delivery of the deed.
“ Contract for purchase of this property to be prepared not later than Wednesday, September 6, 1923.
“ BERTHA A. HOBERG
“ Witnessed by A. S. ROBERTS.
“ D. M. Borell.”
Defendant’s evidence shows that she did not execute the contract merely because certain things were not included in the formal contract which she had agreed upon with the buyer; but she expressly stated that she refused to accept any contract whatever, and it is inferable that she would not sign any contract even though it might so agree.
*597The memorandum seems to be sufficient upon which to predicate the judgment which required her to deliver to the plaintiff a full covenant warranty deed conveying to the plaintiff the premises in question upon receipt by her from the plaintiff of the balance of the purchase price and execution and delivery by plaintiff of a second mortgage for the balance of the purchase money, the conveyance to be subject to a first mortgage now on record in the sum of $28,000.
The principal objections raised to the judgment are that there were certain conditions still to be carried out after the memorandum of receipt and payment was drawn up. But the evidence does not bear out this fully, except that there was a discussion about keeping the janitor, and it was said that adjustment of rents and taxes would be taken up in the contract. Of course, the terms with respect to these would be implied without any further contract, and the consent to keep the janitor was not a necessary portion of the contract for the sale of land required to be included in the memorandum thereof. It is also contended that the judgment erred in having directed that a warranty deed be given, but if that objection be urged, plaintiff is willing that the judgment be modified by striking out the word “ warranty ” on condition that defendant first deposit a proper deed. The suggestion that this be imposed as a condition is made because the warranty deed which the defendant deposited in the county clerk’s office under section 597 of the Civil Practice Act, which stayed the execution of the judgment, would not be available to plaintiff after modification by the court which would require merely a proper deed.
It is said that the defendant is a non-resident of the State and enforcement of a modified judgment v/ould be difficult unless this requirement be made conditional in any modified judgment. The claim is also made that the judgment is erroneous because it requires the defendant to take a second mortgage as part of the purchase money subordinate to the first mortgage. The contract provided that there was to be a first mortgage of $28,000 on the premises, and that a second purchase-money mortgage of $20,000 for ten years from the date of closing was to be taken back subject to such first mortgage. As a matter of law the second mortgage would be subordinate in lien to the then existing first mortgage, and was so intended to remain by the parties because they used the words in their memorandum, “ second mortgage.” The defendant apparently was acting in bad faith in not executing the formal contract for notwithstanding the fact that she sold the property at an expressed consideration of $58,000, she stated she had an offer for $62,000 with more cash as a first payment, and she wanted *598that amount from the plaintiff before she would make a formal contract, to which demand plaintiff refused to accede and brought his action.
The judgment directing specific performance, should be modified by striking out the requirement for delivery by defendant of a warranty deed and by substituting instead thereof a direction that defendant deliver a proper deed, on condition, however, that defendant deposit such proper deed in the county clerk’s office of New York county within twenty days after entry of this order and service thereof on the attorneys for appellant, and upon failure to comply with this condition the judgment as entered will be affirmed, with costs.
Clarke, P. J., Dowling, Merrell and Burr, JJ., concur.
Judgment modified as indicated in opinion and as so modified affirmed, with costs,. Settle order on notice.