Opinion
November, 1904.
Present — Van Brunt, P.J., Patterson, O'Brien, Hatch and Laughlin, JJ.
Judgment modified by striking out clause providing for reference to assess damages and the provision as to payment of damages; and as modified affirmed, without costs of this appeal.
Upon an examination of the evidence in this case there does not seem to be any such discrepancy in the rentals as represented and as they actually were, as would justify a finding of fraud. Indeed when the defendants first desired to retire from the bargain they did not assign any such reason, although they subsequently did. There was no foundation for the provisions in respect to damages sustained by the refusal of the defendants to carry out their contract. The court by its judgment has required the specific performance of the contract and has provided for the equalization of the rents, interest, taxes, etc., on each piece of property, and when that is done there is no further ground for recovery in the shape of damages. The judgment should be modified by striking out the clause providing for a reference to assess damages, and also the provision as to the payment of damages, and as modified affirmed, without costs of this appeal.