The reasons given by Ingraham, J., at special term, for refusing to enforce a specific performance of the defendant’s contract until the final determination of the litigation between the defendant and Oscar Baumann, are so fully stated and so satisfactory that it is necessary to add very little, if anything, to what was said by the court below in disposing of this action. We may suggest, however, that to allow the plaintiffs to prevail, while the litigation with Baumann is still pending, would be not to enforce the contract which was actually entered into between the parties to this suit but to make a new contract for them. According to the express terms of their agreement, the time for closing the title is to be adjourned until the final determination of the controversy between the defendant and Baumann; and that the controversy thus referred to means the suit of Baumann against this defendant is apparent from the further provision in the contract, that she was only to convey to the plaintiffs in the event that “the said litigation” should be determined in her favor. The said litigation being undetermined, and there being no suggestion that the defendant has done anything to prevent a timely decision thereof, there is no basis for the claim that she has violated either the letter or the spirit of her contract. The fact that the plaintiffs think that the arrangement they have made with Baumann leaves the defendant in just as good a position as she would occupy if the litigation had been determined, is not conclusive in any manner upon her. I cannot see why, under any rule of law or equity, she should be compelled to convey the property, which is the subject-matter of this suit, until the contingency occurs upon which she undertook to convey it. The judgment should be affirmed.
All concur.