(dissenting.) On the 7th day of January, 1891, the appellant agreed in writing to sell to one Bobinson a large plot of land located in the Twelfth ward of this city, for the price of $22,5Q0, and the deed was to bedelivered on February9, 1891. Subsequently Bobinson assigned his interest in the contract to the respondent. At the date of the execution of the contract—January 7th—there were on said premises 32 buildings, owned by the occupants, who came and went without permission of the owner. Before tile time fixed for closing, counsel who examined the title requested an adjournment to February 16th, to verify certain papers, which extension was agreed to. On February 10th said counsel notified the defendant that he would be required to remove the tenants from the premises. The defendant on February 12th employed George G. Butciier as his attorney for the sole purpose of removing the tenants, and during such removals to consent to the adjournment of passing the title. On February 12th Mr. Butcher, on behalf of the defendant, requested an extension of the contract, and by consent the closing was postponed to March 10th. On that day the squatters had not been removed, and another extension was given to defendant till April 13th. At that time Mr. Butcher applied for a further extension, and counsel for the respective parties indorsed on the contract as follows: “The date of carrying out the purchase of above-described premises is made on or before the 9tb day of May, 1891, as though said day had been originally fixed therejn for closing said title, and time is now made the essence of the contract.” I now quote verbatim the tenth and eleventh findings of fact: “Tenth. The real and true meaning of the stipulation of April 13, 1891, between attorneys Garrison and Butcher, in the minds of the parties thereto, was solely to provide peremptorily against any further postponement than that therein named, and that neither of said parties intended by said stipulation that said contract should be altered or enlarged thereby. Eleventh. That all the postponements, except the first, were for the purpose of enabling defendant to re*170move the tenants or squatters, and the said postponements were by mutual consent.” The attorney for defendant commenced to dispossess the squatters about February 12th, and proceeded with diligence, arid on May 4th all were removed from the premises. On January 9th the land in question was-open and not fenced. Bush street was not paved, but had been used for vehicles for eight or ten years. “William street was very largely water. ” Columbia street is graded and paved. On March 3d an assessment of $901.12' was levied on said premises for the grading and paving of Bush street, and on April 28th an assessment for $1,079.33 was confirmed for the grading and paving of William street; but down to the date of trial—December, 1891— nothing had been done by the city towards the grading and paving of either street. The defendant did not, nor did either of the attorneys, have any knowledge on April 13th that an assessment had been levied. On May 4th the defendant tendered plaintiff a deed with covenants that the premises were free and clear of incumbrances on February 9th. The plaintiff demanded a deed with covenants against incumbrances to May 4th. The plaintiff refused to accept the tender of defendant on the sole ground that the defendant-was obliged to pay the assessments for grading and paving Bush and William streets. The foregoing statement of facts is taken from the decision in. the record.
The learned trial judge found as conclusion of law that the defendant-should specifically perform his contract, and should pay the two assessments-as claimed by plaintiff. In the opinion at special term it is stated that both parties asked specific performance. I do not so understand from the record. It is true that in the prayer for relief in the answer the defendant asked that-the equities between the parties should be adjusted as of February 9th, and that the plaintiff be decreed to specifically perform his contract; but it is also-true that, in addition, he asked that he have such other or further relief as-equity and good conscience, and the circumstances of the ease, required, and which to the court should seem meet and proper. I regard the prayer for relief in an action in equity as of little consequence when such action is litigated. The requests to find are controlling, and in his requests the counsel for defendant did not ask a specific performance. This is an action in equity, and the court may and should go behind the letter of the agreement, and do-what is just and fair between the parties. The case comes down to this single-question: Is it equitable that the defendant should pay the two assessments, amounting to about the sum of $2,000? The date of the contract of sale was January 7, 1891, and the deed was to be delivered on February 9th. The assessment for grading and paving Bush street was confirmed March 3d, and the like assessment on William street became a lien on April 28th. Assessments in this city are levied in advance, and in December last neither Bush nor William street had been paved. On the facts, as found, it appears that the parties did not know that the assessment on Bush street was a lien when the contract was extended, aud the assessment on William street was not levied until after the last extension. If the assessments had been laid for improvements which had been completed or were in progress, then the defendant clearly should pay them. Lathers v. Keogh, 109 N. Y. 583, 590, 17 N. E. Rep. 131. The closing of the contract was postponed for the sole purpose of giving the defendant time to remove the tenants. In equity it was postponed for no other purpose. If so, I do not think that the plaintiff should derive any other benefit than what was mutually intended by the parties. The assignor of the plaintiff purchased the premises on January 7th, when the-contract'was made, and the purchase price was fixed at that time at the sum of $22,500. Bush street was then passable for vehicles, but was not paved, and William street could only be navigated by boats. The plaintiff did not-have in view that the assessments would be confirmed before February 9th. If the defendant pays the assessments, then, in effect, Bush and William
L *171streets were graded and paved when the contract was made, on January 7th. In a court of equity the time of sale of real property is when the contract is made, and not when the conveyance is delivered in pursuance of the contract. Simmons v. Cloonan, 47 N. Y. 1, 13, 81 N. Y. 557. If the defendant had contracted to sell the lots after the assessments were levied, and the purchaser had knowledge of thefact, then a different question would have been presented, and perhaps, if the assessments had been levied between January 7th and February 9th, the defendant might be held liable to pay the same, though I should be inclined to hold the opposite view. The assessments were the act of the city, in which neither plaintiff nor defendant participated or had any knowledge. A case might arise where lots are sold, and, pending the contract, assessments could be levied up to one half their assessed valuation, (the limit fixed by the charter,) for future improvements. Would a court of equity compel the specific performance of the contract? The plaintiff is not injured if he takes the lots and pays the assessments in question, for the value of the lots, as he purchased them, is enhanced by the amount of the assessments, or, if he declines to take title, the court, on a new trial, can award him damages which will be full compensation for his loss. In this action it has been decreed that the defendant perform a contract which in its effect was never intended to be made by either party. It seems to me to be a clear case of mistake. As I understand the authorities, in an action where specific performance is sought the defendant may always show that there was a mistake, even though such mistake was not mutual; and, if the evidence is clear, and the plaintiff has not suffered thereby, performance will be denied, unless there is gross carelessness on the part of the defendant. The authorities on this question are collated in Pomeroy’s Equity Jurisprudence, (section 860,) and I quote from that work: “A court of equity will not grant its affirmative remedy to compel the defendant to perform a contract which he did not make, or which he would not have entered into had its true effect been understood.” “A mistake which is entirely the defendant’s own, or that of his agent, and for which the plaintiff is not directly or indirectly responsible, may be proved in defense, and may defeat a specific performance.” Parol testimony is admitted in behalf of a defendant, not for the purpose of contradicting or modifying a written agreement, but to defeat the equity of plaintiff. This rule is well settled by the text-books and authorities. 1 Sugd. Vend. 160; Pom. Eq. Jur. (1st Ed.) § 860; Best v. Stow, 2 Sandf. Ch. 298; Stevens v. Cooper, 1 Johns. Ch. 425, 429; Harris v. Pepperell, L. R. 5 Eq. 1; Martin v. Pycroft, 2 De Gex, M. & G. 785. It is claimed that the defendant must pay the assessments because the contract of sale so requires, but it clearly appears that the defendant did not so intend, and that the plaintiff never so expected, when the contract was made, or when the extensions were given. The case of Post v. Beet, 8 Paige, 336, seems to me to be directly in point on the question involved in this case. See, also, Dowdney v. Mayor, 54 N. Y. 186.
At folios 164 and 165, there are three exceptions to the refusal to admit testimony whereby the defendant sought to show that at the making of the contract there was a verbal understanding between the assignor of plaintiff and the defendant that the tenants should remain. In my opinion, the testimony should have been admitted on the authorities before cited, though I prefer to put my conclusion on no technicality, but on the ground that on the entire case specific performance should be denied to the plaintiff for want of equity. The judgment appealed from should be reversed, and a new trial granted, with costs to appellant to abide this event.