Plaintiff contracted to purchase seventy-five vacant lots in an undeveloped section. Unknown to the parties the city of New York had become vested with title to a portion of five of the lots for the purpose of extending a street at the rear thereof. The question here is whether the fact that the defendant is unable to convey title to the small portion of the lots acquired by the city entitles the plaintiff to a lien for the down payment and deprives defendant of the right to specific performance. Is the variance between the quantity of land contracted for and the land described in the deed tendered to the plaintiff so substantial that a court of equity should refuse specific performance, or should the court decree specific performance with an allowance to the plaintiff on account of the reduced quantity of land? (Reife v. Osmers, 252 N.Y. 320.) The answer cannot be predicated upon the pleadings, but must be determined upon the evidence to be presented at a trial.
The judgment of the Appellate Division, entered upon its order of November 1, 1929, should be reversed, and the order of the Special Term affirmed, with costs in the Appellate Division and in this court.
The order of the Appellate Division dated February 15, 1929, should also be reversed in so far as it strikes out the defendant's second defense.
CARDOZO, Ch. J., POUND, CRANE, LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur.
Judgment accordingly. *Page 355