Argued April 24, 1922
Decided June 6, 1922
Louis B. Boudin for appellant.
I. Maurice Wormser and Milton C. Weisman for respondent.
One Rose Gluckin made a contract to sell a house and lot in Brooklyn to Weinstein and Joblin. The price, $12,550, was to be paid partly in cash and partly by the execution of a purchase-money bond and mortgage payable in semi-annual installments within a period of three years. The vendees assigned to the plaintiff their interest in the contract and in the land therein described. A suit for specific performance followed the vendor's refusal to convey. The Special Term gave judgment in favor of the plaintiff. The Appellate Division reversed on the ground that specific performance will not be granted at the suit of an assignee, unless the assignment of the contract is coupled with an assumption of its burdens. The result has been thought to be a deduction from cases which have conditioned relief in equity upon mutuality of remedy. We think the deduction must be rejected as unsound.
The assignee of such a contract succeeds by force of the assignment to the position of the original vendee as "the equitable owner" of the subject of the sale ( Lenman v. Jones, 222 U.S. 51, 54; cf. Elterman v. Hyman, 192 N.Y. 113, 119, 120). Equity, while recognizing his right, will not leave him powerless to vindicate it, by with-holding the equitable remedies without which the right is ineffective. The anomaly is not presented of a trust which equity establishes, but refuses to enforce. Assignee and assignor alike, upon fulfillment of the agreed conditions, may have the aid of the court in converting the equitable right into a legal estate. For this, the precedents are ample ( Lenman v. Jones, supra; Seaman v. Van Rensselaer, 10 Barb. 81; Dodge v. Miller, 81 Hun, 102; Murphy v. Marland, 8 Cush. 575; Corbus v. Teed, 69 Ill. 205; 2 Story's Eq. Juris. sec. 1024). In such an exercise of jurisdiction, there is no risk of hardship or injustice to the vendor. The assignee by the very act of invoking the aid of equity, assumes the duty of performance, and subjects himself to any conditions of the judgment appropriate thereto ( Catholic F.M. Society v. Oussani, 215 N.Y. 1, 8; Consol. Fruit Jar Co. v. Wisner, 110 App. Div. 99; affd., 188 N.Y. 624; Goldthwait v. Day, 149 Mass. 185, 187; Martin v. Mitchell, 2 Jac. W. 413, 427). At first the vendor had the obligation of the vendees, and of no one else. The obligation thus imposed has not been lost, but another has been added. Some one has at all times been charged with the duty of performance. The continuity of remedy is unbroken from contract to decree.
We hold, then, that specific performance was available to assignee as to assignor. Nothing to the contrary was intended by our decisions in Wadick v. Mace ( 191 N.Y. 1) and Levin v. Dietz ( 194 N.Y. 376). Later cases have made it clear that the decisions there made will be closely confined, and not extended by analogy. If there ever was a rule that mutuality of remedy existing, not merely at the time of the decree, but at the time of the formation of the contract, is a condition of equitable relief, it has been so qualified by exceptions that, viewed as a precept of general validity, it has ceased to be a rule to-day ( Catholic F.M. Society v. Oussani, supra; Trustees of Hamilton College v. Roberts, 223 N.Y. 56; Haffey v. Lynch, 143 N.Y. 241, 248; Waddle v. Cabana, 220 N.Y. 18, 26; Bostwick v. Beach, 103 N.Y. 414, 422; Heald v. Marden, Orth Hastings Co., 233 N.Y. 575; Paterson v. Chase, 115 Wis. 239; Stone, The Mutuality Rule in New York, 16 Columbia Law Review, 443; 3 Williston, Contracts, secs. 1433, 1436, 1440, and cases there cited). What equity exacts to-day as a condition of relief is the assurance that the decree, if rendered, will operate without injustice or oppression either to plaintiff or to defendant (Williston, supra; Stone, supra; Ames, Lectures on Legal History, p. 370; Lewis, Want of Mutuality in Specific Performance, 40 Am. Law Reg. [N.S.] 270, 382, 447, 507, 559; 42 id. 591). Mutuality of remedy is important in so far only as its presence is essential to the attainment of that end. The formula had its origin in an attempt to fit the equitable remedy to the needs of equal justice. We may not suffer it to petrify at the cost of its animating principle.
The judgment of the Special Term permits the plaintiff to substitute cash for the purchase-money bond and mortgage which under the terms of the contract were to be signed by the vendees. The evidence is uncontradicted that the vendees were present on the law day and were ready and willing to deliver the bond and mortgage if required. The vendor repudiated the contract altogether. In these circumstances, there was no need of a new trial by reason of the variance permitted by the judgment in the method of performance. We are not informed that the cash was less acceptable than the mortgage. If, however, it was, a modification of the judgment would have furnished the required correction. Even that modification, however, is no longer of practical importance. The judgment directs specific performance as of May 14, 1919. The mortgage called for by the contract was to be payable in three years. The cash, therefore, would now be due, if the mortgage had been given.
The order of the Appellate Division should be reversed, and the judgment of the Special Term affirmed, with costs in the Appellate Division and in this court.
POUND, McLAUGHLIN, CRANE and ANDREWS, JJ., concur; HOGAN, J., concurs in result; HISCOCK, Ch. J., absent.
Order reversed, etc.