Opinion
Argued October 8, 1917
Decided October 16, 1917
Robert W. Bonynge for appellant.
Walter B. Solinger and Fernando Solinger for respondent.
Austen G. Fox, Ira A. Place and William A. Evans for Herman M. Biggs et al., amici curiæ.
Lamar Hardy, Corporation Counsel ( Terence Farley and Leon N. Futter of counsel), for city of New York, intervening.
It appears from the contract in controversy and the pleadings that it was understood by the contracting parties to be wholly dependent upon the defendant obtaining title to plaintiff's and other real property, mentioned in the contract, the title to all of which was to be taken solely for a purpose which has either been prevented by the ordinance in question or can only be carried out after successfully maintaining in the courts that such ordinance is unconstitutional, and it would be inequitable in this case to decree specific performance. The opinion of Justice SCOTT of the Appellate Division, so far as it discusses the question upon which we place our decision, is approved.
The order should be affirmed, with costs, and question certified answered in the negative.
CHASE, CUDDEBACK, HOGAN, McLAUGHLIN and ANDREWS, JJ., concur; HISCOCK, Ch. J., and POUND, J., dissent.
Order affirmed.