Ferris v. Plummer , 6 N.Y. St. Rep. 52 ( 1886 )

Pratt, J.:

The enforcement of specific performance always rests in the sound discretion of the court; and when it is made to appear that a reasonable doubt exists as to the validity of a title, the court will not compel a purchaser to take a title, but will leave the vendor to iiis action for damages.

In the case at bar we think the decision in Bogart v. Swezy (26 Hun, 463) raises enough doubt as to the validity of the title, so that specific performance should not be required. We cannot distinguish between the principle of that case and the case now presented. It has been said that a decision by a court of co-ordinate jurisdiction, adverse to the principle on which the title rests, will raise sufficient doubt; that specific performance will not be decreed though the court thinks the decision wrong. (Fry on Specific Performance [3 Am. ed.], 433.) It would, therefore, not be profitable for us to discuss whether the decision in Bogart v. Swezy correctly states the law. "We are constrained to say that an objection, based on a decision of a General Term of this court, cannot be considered captious or unreasonable on the part of a purchaser. So long as no adverse decision has been made by controlling authority, the holder of the title might find his market injured by the, objection now raised. The decision at Special Term not to compel performance was, therefore, right. Costs were, however, in the discretion of the court and we think should not have been given.

The judgment below will be modified by striking out the costs; no costs of appeal.

Present — Barnard, P. J., Dyicman and Pratt, JJ.

Judgment modified, so far as to deny costs of trial, without costs to either party on appeal.