Although this arrangement was oral and related to a term exceeding one yeai’, to wit, for one year and one month, it operated, with the acts of the parties under it, to discharge the defendant from a claim for future rent, as was, in fact, expressly agreed. It was, in effect and in fact, a surrender of the remaining term “ by act or operation of law.” Such surrender was admissible under the <mask> (3 R. S. [7th ed.], 2326, § 6), inasmuch as a surrender “ by act or operation of law ” is expressly excepted from it. This exception left such surrender to remain as at common law. It is important, of course, that it be established, that the lessor gave assent to the termination of the lease as to the original lessee, and accepted the new party as tenant in his place. But such was just this case. In Smith v. Niver, Harris, J., says: “It is undoubtedly conclusively settled by authority that a second lease, to operate as an effectual surrender of the first, must itself be effectual to vest in the lessee the term it professes to convey, and must bind him to a'performance of its conditions on his part.” The learned judge was here speaking of the precise case stated by him, a case unaccompanied by acts of the parties, which, with the agreement, would carry with them an element of estoppel, for in the next sentence he adds: “ But it has never, I apprehend, been decided that a lessor who has consented to a change of tenancy, and permitted a change of occupation, and received rent from the new tenant as an original and not as a sub-tenant, can afterwards charge the original tenant for rent accruing during the *433occupation of the new tenant.” And, further, “ if the lessor, in fact, ■consent that the lessee shall cease to be liable and accepts a substituted tenant, the first tenant must be held to be discharged. The lessor has his remedy against the new tenant, and is estopped from, denying a legal surrender of the first lease f and he repudiates the •doctrine to the contrary of this, sought to be maintained on the strength of Schieffelin v. Carpenter (15 Wend., 400), as to which he says, if this case is to be regarded as an authority, therefor, “ I think it is in that respect wholly unsupported, either by principle or adjudged cases.” The remarks of the learned judge above quoted .are not, as was supposed by the learned referee, to be limited in their application to a case where the substituted tenancy was for a period not exceeding one year, for they were made with reference to a surrender “by act or operation of law,” which, as .above suggested, is excepted from the statute, and is left to have effect as at common law, hence would, when proved, apply to a longer as to a shorter term alike. In Beall v. White (94 U. S. R., 389), it is said by IVEr. Justice Oliffoed that “text writers agree that a surrender is the yielding up the estate to the landlord, so that the leasehold interest becomes extinct by mutual agreement between the parties. It is either in express words, by which the lessee manifests his intention of yielding up his interest in the premises, or hy operation of law, when the parties without express surrender do some act which implies that they have both agreed to ■consider the surrender as made,” citing both Woodfall and Taylor •on Landlord and Tenant in support of his remarks. This subject is considered quite elaborately, and with clearness and precision, in Bingham on Real Estate (p. 260), where the distinction between a surrender by express words and a surrender by implication, that is, by operation of law, is marked and- commented upon'. It is'there said that “the material point of such an issue is one of ■evidence, whether the intention of both the lessor and the lessee, is proved by words only, and not by written evidence) as prescribed in the statute of frauds, or by their • conduct and actions. If it is proved by words only, the agreement is within the statute of frauds, 'and cannot operate as a surrender. If their intention to surrender is made plain by their conduct and actions, in a way which permits of no mistakes or misrepresentations, by means of *434the perjury or the misunderstanding of witnesses, the agreement to’ surrender is so proved as not to be within the statute of frauds, but amounts to an ‘ act or operation of law,’ as that phrase is used in the statute, and effectuates a surrender,” and in support of this doctrine many cases are there cited. (See, also, Blumenthal v. Bloomingdale, 100 N. Y., 558.) In Matthews v. Sawell (8 Taunt., 270) it was held that a mere parol surrender of a written lease having more-than three years to run was void under the statute of frauds, and consequently the lessee was not discharged therefrom. In this case importance was given to the fact that the plaintiff had not assented to any change of tenancy. Dallas, J., said: “ If the plaintiff had in fact consented that the defendant should cease to be Hable, and had gone beyond that and had accepted a substituted tenant, I should have-thought the defendant discharged.” (See, also, remarks of the other judges to the same effect.) The case supposed by the learned judge, as above given, is quite like the present. It is laid down in 4 Wait’s Actions and Defenses, 212, after speaking of express surrenders-touched by the statute of frauds, that “ a sun-ender by operation of' law is effected by some- less formal act of the parties, from which a mutual agreement by them to consider the surrender as made may be implied; some aot of notoriety which estops them from denying that it has taken place; ” and it is added: “ Thus any agreement between the parties that the term shall be put an end to, wMch is un equivocally acted upon by both, is such surrender; ” and, further, “ an actual and continued change of possession by the mutual consent of parties is a surrender by operation of law, whether the-possession is delivered to the landlord himself or to another for him; ” and, still further, “ acceptance of possession by the landlord and his leasing the premises to another, or accepting an, under tenant or an assignee as his tenant, followed by an actual possession by the latter, also operates as such a surrender.”


No contractual liability can be imposed upon the State except in the manner prescribed by law. The statute in question. pro: vided that no contract over a certain sum shall be deemed executed or effective unless the same is first approved by the comptroller and filed in his office. Such provisions can not be waived by any of the officers of the State. (Belmar Contracting Co. v. State of New York, 233 N. Y. 289; New York Central R. R. Co. v. State of New York, 183 Misc. 815.) In the Belmar case .(supra) the Court of Appeals held: “ There is a like situation here. Section 130 of the Highway Law clearly provides- that the execution of a formal written contract after its approval by the comptroller is essential. This is the basis of the liability of the state. None of its officers may impose upon it a contractual obligation. except in the manner prescribed. We may not ignore the restrictions and limitations with which the legislature has chosen to surround the expenditure of public moneys. They are wise and should be enforced. The state has chosen to- enact something similar to the <mask> for its own protection. Those dealing with it do so knowing this fact and at their own risk. If there is no contract there is no liability. However inequitable the conduct of the state may be it has said that it shall only be responsible upon one condition and consequently the claimant « must show that that condition has been complied with. Nor may this rule be evaded any more than the provisions of the Statute of Frauds may be evaded on any theory that while the contract itself is unenforcible the contract to make this contract, is valid. (Dung v. Parker, 52 N. Y. 494.) Had the State of New York refused entirely to execute the contract it incurred no liability. Equally true is this if it merely delays in its *649execution. (South Boston Iron Co. v. United States, 118 U. S. 37.)”


The same underlying principle runs through the other authorities upon which the special guardian and the referee place reliance. In Mutual Life Ins. Co. v. Holloday a husband deeded. certain land to his wife on a parol agreement that she should devise it to him in her will. She actually executed such a will. She later made another will leaving it to others. It was held that the agreement although originally void by reason of the <mask>, had become fully executed by the transfer and the execution of the will, thus effectually preventing the transferee from making a valid subsequent will diverting it to others. In Lyons v. The Maccabees a prospective husband induced plaintiff to marry him in reliance upon a parol agreement, which he fulfilled, to make her the beneficiary under a certain policy of insurance. It was held that the agreement was consummated by the marriage and designation of beneficiary and that the insured could not thereafter validly substitute another payee of the proceeds of the policy. Miller v. Sire presented substantially identical facts except that the inducement for the marriage was an assignment of a mortgage, which took place substantially simultaneously with the marriage.


Eorbearance to sue by the creditor, for a certain time, or generally, without specifying any time, is a good consideration to support a promise to pay the debt of a third person, if properly expressed in the writing. 4 John. 237, And it seems that if. A, verbally request a merchant to credit another person for goods, and he do so, the past consideration is sufficient to support a written contract, afterwards formerly signed by A, Vid. Fell on Merc. Guar. 39, 40, 260. And where you refuse to give credit to A. for goods, till he gives *360-1you a promissory note, stating for value received, and I write under the note, “ I guaranty the above,” and sign my name to it, upon which you let A. have the goods; although this is a collateral undertaking, upon which, if by parol, I should not be bound, yet my written guaranty shall bind me; for, though it be true, that no consideration is directly expressed by me for my undertaking, yet it shall be referred to the value received, mentioned in the note of A.; and being all one transaction, there is thus a sufficient consideration to be gathered from the face of the instrument, to sustain my engagement within the meaning of the <mask>. 8 John. 29. Such a paper imports one original entire transaction; for a guaranty of a contract implies, from the force of the term, that it is a concurrent act, and part of the original agreement. Id. 40, per Kent, Ch. J. Hence, the plaintiff may declare if he chooses, on the contract itselfj without troubling himself about the original consideration, and recover as in ordinary cases, by a simple proof of the instrument.


The <mask> is a shield which a party may use or not for his protection, just as he may use the Statute of Limitations, the statute against usury and that, against betting and gaming. Crane v. Powell, 139 N. Y. 379. Hence it follows that the defendant Smith, when he signed the. counterpart'of the lease in evidence, waived the statue of frauds- in this case,- by admitting the lease to bé signed and sealed by the lessors.


Former section 282 of the Real Property Law relied upon in Brody v Rhoads (33 Misc 2d 699, affd 15 AD2d 561) was repealed effective September 27, 1964 by subdivision 7 of section 19-101 of the General Obligations Law and its provisions are incorporated in section 15-301 of the General Obligations Law. As the statute is inapplicable, the contract for the purchase and sale can be terminated orally. Apart from this statute, a paroi discharge or termination of a contract for the purchase and sale of land is valid. The <mask> does not relate to an agreement to abandon or rescind a contract for the sale of land. (56 NY Jur, Statute of Frauds, §§ 156, 159; 4 Williston, Contracts [3d ed, 1972], § 592.) The complaint must be dismissed with costs.


The learned counsel for appellants urges one ground for reversal, which, he claims, arises from the refusal of the court below to charge, in behalf of defendants, the following request: “ If the contract was made on the seventh or eighth of January, as testified to by Mr. Pontier, the plaintiff cannot recover, even if it had been a contract for a year; that such a contract would be void under the <mask>.”


*403Without reference to the sufficiency of the evidence to establish the plaintiff’s alleged oral contract it is clear that she cannot prevail on this appeal. The action is at law and not in equity. The contract to make compensation in real estate not being in writing is void under the <mask>, and whatever relief might be granted the plaintiff in an action in equity the court is powerless to grant relief in this action beyond what the trial justice has already granted. (Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], §§ 259, 270; Banta v. Banta, 103 App. Div. 172; Ludwig v. Bungart, 48 id. 613; Matthews v. Matthews, 133 N. Y. 679, 80 Hun, 605; Stanton v. Miller, 14 id. 383, affd., 79 N. Y. 620.) The trial justice, therefore,, awarded the plaintiff the most favorable judgment to which under the pleadings and evidence she was entitled.


In conclusion, I refer to the case of Thompson v. Blanchard (3 N. Y. [3 Comst.], 337), in which it was held by the court of appeals that an undertaking required by statute to be entered into by sureties, in order to give a right of appeal, is valid if it contain the necessary stipulations, although it does not express a consideration, and is not under seal; and that if it could be said that such an instrument would not be obligatory by the <mask>, the very obvious answer is, that the legislature of 1848 had the same power to restore the *319common law, as to this class of securities, that their predecessors had to abolish it.


Perhaps it should be observed at this point that defendant’s denial of liability to Kidder Peabody is based not only on the <mask>, but also on certain factual grounds to be passed on by the jury under proper instructions at the close of all the evidence: — that there was neither contract nor any understanding on the part of defendant that it was the party which was to compensate Kidder Peabody for its services; that, after the parties had failed in two attempts to agree, Kidder Peabody abandoned this deal and acted for other and conflicting interests; and that the merger, ultimately effectuated about three years after the original introduction, was not the result of Kidder Peabody’s services but was the result of independent intervening-factors.


Even if the decedent had consented to the transaction under some oral agreement or declaration of trust, the circumstances attending the whole matter are sufficient to constitute a constructive trust which a court of equity will recognize and enforce despite the provisions of the <mask> (Real Prop. Law, § 242) or of its extension (Real Prop. Law, § 259) or of the statute which abolished, with specified exceptions, the resulting trusts recognized and enforced at common law (Real Prop. Law, § 94). Equity will not permit a statute to be used as an instrument for either the perpetration or the perpetuation of a fraud, but will grant relief whenever a person, through the influence of a confidential relationship, acquires title to property which he cannot conscientiously retain adversely to the interest of the person who placed confidence and trust in him, or whenever the abuse of a confidential relation leads, without any writing, to the implication of a trust. (Wheeler v. Reynolds, 66 N. Y. 227, 237; Wood v. Rabe, supra; Goldsmith v. Goldsmith, 145 N. Y. 313, 318; Sinclair *125v. Purdy, 235 id. 245, 252; McKenna v. Meehan, 248 id. 206, 214; Foreman v. Foreman, 251 id. 237, 241; Fraw Realty Co. v. Natanson, 261 id. 396, 401, 411; Herrmann v. Jorgenson, 263 id. 348, 355; Foote v. Foote, 58 Barb. 258, 262; affd., sub nom. Foote v. Bryant, 47 N. Y. 544, 550; McClellan v. Grant, 83 App. Div. 599; affd., 181 N. Y. 581; Gallagher v. Gallagher, 135 App. Div. 457, 463; affd., 202 N. Y. 572; Matter of Michelbacher, supra; Irving Trust Co. v. Reikes, 228 App. Div. 510, 513; Isquith v. Isquith, Nos. 1, 2, 229 id. 555, 561; Matter of Van Muffling, supra.)


Plaintiff’s argument assumes that the New York <mask> is substantive, rather than procedural. This question has not yet been settled (see Rubin v. Irving Trust Co., 305 N. Y. 288) and need not be passed upon here. Even if our statute is substantive, this court would not apply such a mechanical rule to the facts of this case, for in so doing, it might allow the enforcement of a contract which is unenforcible where made and where it was to be performed and which would have been unenforcible in New York had it been made here. Therefore, the first cause of action must be dismissed.


Notwithstanding the foregoing, the court notes that the doctrine of part performance is itself subject to an exception that precludes its application here. Significantly, it has been held that where an action “is pleaded as one at law, and seeks only money damages, without any specific prayer for equitable relief, the plaintiff cannot rely on the doctrine of part performance to defeat the <mask> defense” (Zito v County of Suffolk, 106 AD3d 814, 816 [2d Dept 2013]; see also Sparks Assoc., LLC v North Hills Holding Co. II, LLC, 94 AD3d 864, 865 [2d Dept 2012] [part performance may be sufficient in some circumstances to overcome the statute of frauds, “but only in an action for specific performance”]; Stainless Broadcasting Co. v Clear Channel Broadcasting Licenses, L.P., 58 AD3d 1010 [3d Dept 2009]; Farash v Sykes Datatronics, 90 AD2d 965, 965 [4th Dept 1982] [“equitable claim of part performance cannot be applied in an action at law”]; 73 Am Jur 2d, Statute of Frauds § 296 [“doctrine of part performance is purely an equitable doctrine, unrecognized at law, and accordingly will not sustain an action at law based on a contract within the Statute of Frauds. Thus, the part performance exception to the Statute of Frauds is inapplicable in a suit where only money damages are sought”]).6


It ought to be constantly kept in mind, that the conflicting claims of the parties here, did not arise whilst the power of revocation existed. That power was completely extinguished by the deed of 1800, and before the respondents acquired any interest in the subjects embraced in those, deeds. There can be no doubt, but that at that time (May, 1800) an original assignment might have been legally made, giving to J. B. Murray all the claim now set up. If so, there could be no good reason against his then taking a rati*588fication, or confirmation, of any prior defective assignment» In the case of Tarbuck v. Marbury, (2 Vern. 510.) so much relied on for setting aside these assignments, it was a judgment creditor who was setting up his claim against the deed, which was set aside, because the power reserved to the grantor to mortgage and charge the estate with what sums he thought lit, was considered as amounting in effect, to a power of revocation. Where the creditor is pursuing his debtor with a judgment and execution, or in any other manner, to enforce payment of his demand, an assignment of the debtor’s property, containing a power of revocation, may very well be considered as made to “ delay, hinder, or defraud creditors,” according to the language of the <mask>. But I do not see how it could, in any sense, be said to delay or hinder a creditor, who was taking no measures to enforce payment of his demand, as is the case now before us. For any thing that appears, all the creditors of Robert Murray 4r Co. were satisfied with the assignment, and the provision there made for the payment of their debts. This is an im-. portant feature, in which this case is distinguishable from the one of Clark v. Hyslop, decided in the Supreme Court, and on which so much reliance has been placed. Clark there was a judgment creditor, and had issued an execution against Tiis debtor, which was levied on the property 'assigned to Hyslop. This levy was made at a time, too, when by the very terms of the assignment, the property was not held under it, that is, after some of the creditors had refused to come in and accept of the terms proposed, and be'fore any new trusts were declared, pursuant to the provisions in the assignment. It was with great propriety there said, that locking up the property in this manner was decaying and hindering creditors. The observations of Lord Ellenborough, in Meux, qui tam. v. Howell, (4 Term Rep. 14.) would seem to show that no creditor could be considered as delayed or hindered, within the sense and meaning of the statute of frauds, except such as were taking some measures to recover their debt. He says further, that the statute was meant to prevent the operation of deeds, &e. fraudulent in their concoction, and notmerely such as, in their effect, might •delay or hinder other creditors. (1 Vesey, Jun. 160.)


Defendant’s reliance on Schoenfeld v Ochsenhaut (114 Misc 2d 585 [Civ Ct, Kings County 1982, Saxe, J.]) is misplaced. In that case, the plaintiffs contracted to pay the funeral expenses of an elderly neighbor who apparently left no surviving relatives. After the funeral, the decedent’s brother surfaced and allegedly promised the plaintiffs that he would pay the funeral costs, which had not yet been paid. The brother never followed through on that promise, and he was later sued by plaintiffs. Relying on the <mask>, the court ruled that, even if the brother had promised to pay the funeral bill, the promise was unenforceable because it was not reduced to writing.


The complaint made the transactions an arrangement to “manufacture for” defendants articles (not yet in use) of a certain sort prescribed. This is not a sale in prcesenti, within the <mask>, but an agreement to do work and supply the material thereto. Parsons v. Loucks, 48 N. Y. 17; Deal v. Maxwell, 51 N. Y. 652. In such cases there exists an implied warranty that the articles will be free from any latent defect growing out of the process of manufacture, and the rule of “caveat venditor” governs in respect thereof; but as to latent defects in the “materials” used, proof or direct inference of the manufacturer’s knowledge of such latter must be affirmatively shown on the vendee’s part. Hoe v. Sanborn, 21 N. Y. 552, approved in Bridge Co. v. Hamilton, 110 U. S. 114, 3 Sup. Ct. Rep. 537; Howard v. Hoey, 23 Wend. 350. However, a warranty of “fitness” of the ordered chattels for any special, known, or supposed use or purpose is not implied, but the same must be particularly bargained for. Bartlett v. Hoppock, 34 N. Y, 118. The title to the respective articles, of course, remains in such manufacturer until the legal “delivery” and approval of the finished article. Kein v. Tupper, 52 N. Y. 550, 553, 555; Tompkins v. Dudley, 25 N. Y. 273, 274. Meanwhile no action lies for the contract price. 52 Ñ. Y. 555. As regards the “counterclaim,” there was no proof offered, however, that the first lot as delivered was not made equal to the “sample,” No. 260; and such counter-claim was properly disregarded by the court, as unproven. Beck v. Sheldon, 48 N. Y. 365. But as to the second lot of yarn. Before any thereof had been shipped the purchasers duly stopped all further “shipping” of any more goods until further instructions from them. This also appears directly admitted on the face of the complaint. Hence the contract price and charges for shipment were thereafter not recoverable, as such stoppage of further performance was never revoked, (Smith v. Brady, 17 N. Y. 174, 188; Husted v. Craig, 36 N. Y. 221;) and consequently the only remedy of the manufacturer was a suit, not upon and in pursuance of the contract, but for the manufacturer’s “damages” sustained by reason of the vendee’s breach of the contract, through the loss of profits and other attendant injury. Messmore v. Shot Co., 40 N. Y; 427. For, when stopped, the manufacturer could legally go no further. Goodwin v. Kirker, 2 Hilt. 401. The price cannot be recovered, as the “contract price” is not divisible, and the whole agreement was not “performed” when further shipment was forbidden; and, as the yarn on hand or finished could not, thereafter, be rightfully sent off to the place of destination, it remained the manufacturer’s property, and if lost or destroyed he must bear the loss himself. Such stoppage has not been recalled. See Butler v. Butler, 77 N. Y. 472, 475, and authorities cited. The rule is laid down: “No title vests in him for whom a chattel is to be manufactured till it is finished and properly delivered and approved, or sufficiently submitted for approval.” Andrews v. Durant, 11 N. Y. 35, 40, 45. To same effect, Atkinson v. Bell, 8 Barn. & C. 277; Merritt v. Johnson, 7 Johns. 473. And, therefore, no action for the “price” accrues until then. Kein v. Tupper, 52 N. Y. 555. And this is so, although the manufacture (in Europe) of the whole goods was not countermanded, but only their shipment was stopped. The like principles must here apply. The contract sued on, providing for a delivery at a distant point from Europe, was “ambulatory,” until appropriate delivery of the articles ordered. Evans v. Harris, 19 Barb. 417, 427, 428. The case on such rejected goods, as made out by the pleadings and the evidence, was solely one of a “refusal to accept goods” *408manufactured to order, and in such cases, ordinarily, the measure of damages, at most, is the difference between the market value of the goods at the time of the breach of contract and the price at which they were ordered; and a notice to accept was a necessary prerequisite to be given unto the vendee hereto, and the refused merchandise as manufactured might have been sold at auction, with a view of getting at such market value. Bigelow v. Legg, 102 N. Y. 652, 653, 6 N. E. Rep. 107; Myers v. De Mier, 52 N. Y. 647, 648; Messmore v. Shot Co., 40 N. Y. 422, 427; Beebe v. Dowd, 22 Barb. 255. No notice to defendant of such auction sale would be required. Messmore v. Shot Co., 40 N.Y. 422.


Plaintiff’s motion against this counterclaim is granted, because the counterclaim is insufficient in law by reason of the <mask>, there having been no payment and no delivery referable to such alleged oral contract (Personal Property Law, § 85). Defendants’ contention that the original payment of $3,905 made under the written contract was, pursuant to the new oral agreement, applied on the latter is also insufficient as a matter of law, as is the contention that a piece of equipment was delivered and accepted by plaintiff under the original contract, and applied on the new oral contract. (Such acceptance is, however, denied by plaintiff.) Any payment or part performance must be clearly referable to the oral contract, in order to take it out of the Statute of Frauds, and must be made thereunder, not prior thereto. (Young v. Ingalsbe, 208 N. Y. 503; Maher v. Randolph, 275 N. Y. 80; Russeks Fifth Ave., Inc., v. Kaplan, 106 N. Y. S. 2d 661.)


Defendant’s claim of part performance to avoid the operation of the <mask> is untenable since the part performance is not unequivocal in character to establish the agreement. (Wooley v. Stewart, 222 N. Y. 347.) Defendant’s defenses are sham and frivolous and insufficient at law under the Statute of Frauds. The counterclaim does not raise any triable issue but merely involves an accounting which is a necessary incident of almost every partition action and is had as a matter of right before the entry of either the interlocutory or final judgment. (Civ. Prac. Act, § 1075; 8 Carmody on New York Practice, §§ 537-546; Zaveloff v. Zaveloff, 37 N. Y. S. 2d 46, 52.)


Defendant’s first affirmative defense invokes the <mask> contained in section 2-201 of the Uniform Commercial Code, which, in pertinent part, states: “(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker.”


As pleaded, it must be held that the defenses set forth, state facts which if established will defeat plaintiff’s cause of action unless overcome by proof of performance of the quality sufficient to take the transaction out of the <mask>. The court, however, on a motion, is in no position to pass upon that issue as it can only be determined at the trial of the action dependent upon the proof to be adduced there. (Guarino v. Guarino, supra; Hammond v. Hammond, 264 App. Div. 322; Jacobsen v. Jacobsen, 268 App. Div. 770; Katzman v. Ætna Life Ins. Co., 309 N. Y. 197, 205.)


Accordingly, defendant’s motion for summary judgment is hereby denied and additionally, pursuant to CPLR 3212 (b), the court grants partial summary judgment to the plaintiff dismissing the defendant’s <mask> defense. Dismissing the statute of frauds defense, however, is not a finding there was a binding contract, it simply means that the defendant is denied the opportunity to utilize the statute of frauds as an affirmative defense. It still remains for the trier of fact to determine whether an oral contract was formed between the parties (Matter of Marlene Indus. Corp. [Carnac Textiles], 45 NY2d 327 [1978]).


There is, upon the authorities, no doubt that in a case where a certain and definite contract is clearly established, even though it involves an agreement to leave property by will, and it has been performed on the part of the promisee, equity in a case free from all objection on account of the adequacy of the consideration, or other circumstance rendering the claim inequitable, will compel a specific performance, though as an original question it might be considered doubtful whether in any such case, especially when the contract is sought to be established by parol testimony, so patent a means for the evasion of the provisions for the security of property, furnished by the statute of wills, should have been allowed. But courts of equity having been pressed by the hardship of particular cases, and the unreasonable and, perhaps, often fraudulent conduct of the decedent have made precedents on the subject which have resulted in the establishment, as a principle of equity law, that in such cases the court will often decree a specific performance, and charge those holding the property under the will with a trust for the benefit of the party to whom it was agreed to be given. (Parsell v. Stryker, 41 N. Y., 480.) But in the cases in which such con*323tracts are set up, and especially where they are attempted to be established by parol testimony, the temptation and opportunity for fraud is such that they are looked upon with suspicion, and the courts require the clearest evidence that a contract founded on a valuable consideration, and certain and definite in all its parts, should be shown to have been deliberately made by the decedent. (Ogilvie v. Ogilvie, 1 Bradf., 356 ; Bowen v. Bowen, 2 id., 336; Williams v. Hutchinson, 3 N. Y., 312; Robinson v. Raynor, 28 id., 494; Lisk v. Sherman, 25 Barb., 433, and cases before cited.) It is claimed that the contract relied upon in this case is within the <mask>, as one not to be performed within a year. In regard to this question the state of the law may be said to be uncertain. The case of Dresser v. Dresser (35 Barb., 573) went to the Court of Appeals, where, as stated by Mr. Abbott, two opinions on this point were delivered, one holding the contract void, the other, valid; but the court did not pass upon the question. (Table of Cases Criticised, 1 Abbott’s Dig. of New York Reports, Ixiv.). The case in 35 Barbour is stated to have been followed by the General Term in the third department in Kent et al. v. Kent et al. (1 Hun, 529), but the latter case is not fully reported.


Indication of the vendor’s power over the land itself is also found in the fact that he can, while the contract is still in force, convey complete ownership of the land to a bona fide purchaser who receives the property without notice of the contract (see Macauley v. Smith, 132 N. Y. 524) Angel v. Methodist Prot. Church, 47 App. Div. 459; Pollack v. Viele, 273 App. Div. 871, affd. 298 N. Y. 670; cf. Ely v. Scofield, 35 Barb. 330; Ten Eick v. Simpson, 1 Sandf. Ch. 244; 58 C. J., <mask>, § 87, p. 923; 66 C. J., Vendor and Purchaser, § 905, p. 1092).


Edward H. Lehner, J. Defendants move for an order (a) dismissing the complaint dated July 15, 1997 (the Complaint) of Gladliz, Inc. (Gladliz) pursuant to CPLR 3211 (a) (1) and (7) and 3016 (b) on the grounds that (i) Gladliz waived its right to seek damages (as opposed to <mask> or declaratory judgment), (ii) the Complaint fails to state a cause of action, (iii) the Complaint fails to plead fraud with sufficient specificity, and (iv) the allegations in the Complaint are refuted by the documentary evidence; and (b) assessing costs against Gladliz and its attorneys pursuant to part 130 of the Rules of the Chief Administrator of the Courts (22 NYCRR 130-1.1 et seq.).


“ And the said parties of the first part, their heirs, executors, administrators and assigns hereby covenants and agrees to and with the said parties of the second part their executors, administrators and assigns, by these presents, that the said parties of the second part, their executors, administrators and assigns, paying the said yearly rent above reserved and performing the covenants and agreements aforesaid on their part, the said parties of the second part, their executors, administrators and assigns, shall, and may at all times during the said term hereby granted, peaceably and quietly have, hold and enjoy the said demised premises, without any manner of let, suit, trouble or hindrance of or from the said parties of the first part, their heirs and assigns, or any other person or persons whomsoever, and. at the expiration of the term hereby granted {provided the parties of the second part shall have given a notice in writing to the party OF THE FIRST PART, At least. three months before the expiration of the said term, of a desire for a renewal of this lease) the said parties of the first part, their heirs or assigns, will execute and deliver to the said parties of the second part, a further lease of said premises for the further period of seven years from the expiration of the term above granted, at such rate of yearly rent as may be mutually agreed upon between the parties; or in case of disagreement, then the amount of such rent shall be determined and fixed by two disinterested persons, one to be chosen *586by the parties of the first part and the other by the parties of the second part; and in case of the disagreement of said two referees they shall select a third referee, and a decision by a majority of the three referees shall be binding upon the parties hereto.” This provides for the execution and delivery of a further lease, which was not the provision in the lease in the case above cited, and that this was the intention of the parties is made certain by their own interpretation of this covenant since it was first expressed ih the original lease from Edward Barker to George Palmer. Each renewal as exercised has been by execution and delivery of a new lease. All of the data and history concerning these leases appear in the tenants’ answer by way of a separate defense. The lease contains a provision as to disposition of buildings erected by the lessees during the term and also a provision as to the method of fixation of rent for the renewal term. These in themselves “ evoke new conditions of continuance in occupation.” A new lease was both necessary and proper." In any event the right or option to renew is personal property (Decedent Estate Law, § 80; Surr. Ct. Act, § 202; Code Civ. Pro. § 2672), likewise a lease for years. As personal property the same are deemed assets and as such go to the executors and administrators, to be applied and distributed as part of the personal property of the testator or intestate. Surr. Ct. Act, § 202. They are the proper-parties to compel <mask>. Despard v. Churchill, 53 N. Y. 192; Schmitt v. Stoss, 207 id. .731; Walker v. Bradley, 89 Misc. Rep. 516. In order to bring about a renewal of the lease it remains for the surviving tenants and the personal representatives of those dead, to give a timely and proper notice of election to renew the lease and also, under the circumstances, to agree upon the terms thereof and execute the same. The executors or administrators must give this notice themselves. This is one of their powers. They cannot delegate it. Were the facts as in Orr v. Doubleday, Page & Co., supra, they could not compel specific performance for the reason that the original lease was a present demise of the premises for a full term, the last half of which was to take effect upon the termination of the first, no new lease for the additional years being necessary. Maisel v. Shanholt, 189 App. Div. 831. The agent, Mr. Lane, who undertook to give the notice of renewal substituted his name as agent for certain estates. I do not regard that as a proper notice, even if the signing and delivery thereof was authorized by the various personal representatives of deceased tenants. It appears, however, that it was not so authorized. Mr. Lane testifies that Charlotte Case, Ida Dorsett, Emma White and William F. Taylor all .told him “ that they wanted a renewal ” for seven *587years, as was in the original lease. But Charlotte Case had died prior to August 20, 1919, and she was not a party in interest at the time of the attempted exercise of the right of renewal. William F. Taylor denied that he had any such talk with Mr. Lane. Ida Dorsett was but an administratrix de bonis non and the interest represented by her as well as that of Emma White would come by way of the will of their mother, Anna Dorsett, under which William Himlyn was executor and which estate is still in process of administration. Mr. Himlyn never authorized Mr. Lane to ask a renewal. Florence P. Lane claims her interest under an assignment from one Ella F. Mills who was residuary legatee under the will of Charlotte Case. But there are a number of legacies under said will and no proof of any residuary estate, etc. Furthermore there is no assignment from the executors and they do not join in the lease or notice. The tenants contend, however, that the second notice given at the time of the submission of the proposed lease was sufficient notice, even if Mr. Lane was not authorized to act as agent, because, the proposed lease was executed and acknowledged by Elizabeth Egbertson, who under the will of her mother, Elizabeth J. Brown, was named as executrix and sole beneficiary. She duly qualified as executrix. She did not execute thé proposed lease as executrix, but notwithstanding this I should hold the notice of renewal properly executed were it not contingent upon the further renewal of seven years and were she the only person required to give notice: It is well settled, however, that where a lease is made to two or more tenants jointly with covenant for a renewal or a privilege for an additional term, it cannot be exercised by one of them alone., 16 R. C. L. 898; Finch v. Underwood, L. R. 2 Ch. Div. 310; Buchanan v. Whitman, 76 Hun, 67; affd., 151 N. Y. 253; Janes v. Pope, 19 id. 324; Foster v. Mulcahey, 196 App. Div. 814. The notices were not signed by the parties entitled to the renewal. The giving of such notice is a condition precedent which must be performed before the right to a renewal may become vested. McAdam Landl. & Ten. (4th ed.) 593, 596; Morgan v. Goldberg, 9 Misc. Rep. 156. Some testimony has been offered as to the value of the buildings erected by George Palmer during the term of the first lease of said premises. It would seem that this proof is offered that the court may in this proceeding make some allowance to the tenants therefor or that the court may be impressed as to the value of these buildings in determining the equities between the parties. After the buildings were erected a new lease was executed and delivered and further leases have been executed and delivered and with parties landlord and parties tenant both varying. The only .provision in these leases as to the buildings,, and in each lease the provision is *588the same, is as follows: “It is mutually understood and agreed that in case all rents and taxes and water rates are paid as aforesaid at the expiration of the terih hereby granted, the parties of the second part shall within ten days thereafter have the privilege of removing from said premises all buildings and improvements by them placed thereon.” The execution and delivery of a new lease and occupation thereunder for a further term and without reservation as to the buildings other than as aforesaid would seem to be a surrender of the buildings by the tenant to the landlord and the title thereto passed to the landlords Goldberg under the deed from the original landlord. Then again, the persons now claiming to be tenants have chosen to proceed to enforce a renewal and have not availed themselves of the privilege to remove the buildings if in fact they have any present existing rights thereunder. The testimony as to the value of the buildings does not impress me. Standing they have value; removed, the charges of a wrecker would be met. The tenants, however, make no claim for compensation for these buildings herein nor do they ask leave to remove them. If they believe that to be within the equitable jurisdiction of this court in this proceeding and in the present state of the pleadings, which I seriously doubt, then I should find no right to compensation to them for the buildings and no right to remove the buildings. The original lease under which the tenants claim that they are entitled to a renewal by reason of the alleged notice aforesaid makes the further provision, i. e., “ Provided, further, however, that the said parties of the second part shall in no case be entitled to receive a further lease as aforesaid unless all the rents, taxes and water rates upon said premises as heretofore stipulated, shall, at the expiration of the term hereby granted have been fully paid and discharged by the said parties of the second part.” No proof has been offered as to performance or non-performance of this condition. Attention has been called to the judgment in a prior proceeding which inadvertently fixed the date of expiration of the original lease as March 31, 1923. This pending proceeding was not instituted until April 9,1923, or later. Considerable stress has been laid upon alleged dereliction of duty on the part of the trustee under the will of Mary J. Palmer, it being claimed that he will profit at the expense of the estate if the landlord prevail here by reason of the fact that he as executor and trustee has failed to join in the notice of renewal. There has been litigation involving this matter (Palmer v. Taylor, 201 App. Div. 422; 235 N. Y. 367) but not determinative of the questions raised in this proceeding. An executor or- trustee may exercise his discretion as to whether or not hé will- take upon himself the* responsibility of a renewal of a lease; *589and the exercise of an option therefor. If he fail in any duty or obligation to his estate to the damage of the estate, relief may be had against him upon his accounting and not in this proceeding, nor can that question be determined here.


Under the provisions of section 5-1311 of the General Obligations Law, when neither the legal title nor possession of the subject matter of the contract has been transferred to the *390purchaser, if the subject lands are taken by eminent domain, the vendor cannot enforce the contract and the purchaser is entitled to recover any portion of the price that he has paid. It would appear that the respondent, then, having paid $1 for an option it has never validly exercised, has, as a matter of law, no further interest in the premises being condemned, the consideration of the granting of the option having been performed and its maturation into a purchase contract having never taken place and being now expired. Niagara Mohawk has neither title nor possession of the premises and claims in its own verified answer only an equitable title to the premises. The affidavits show, on their face, no valid triable issue of fact. The court finds nothing inconsistent herewith in the case of Matter of County of Westchester v. P. & M. Materials Corp. (20 A D 2d 431). In Fatscher v. South Shore Skate Club (24 A D 2d 462) the purchaser had obtained an.order directing <mask>, later affirmed by the Appellate Division, Second Department, vesting title as of a date before the taking. This case is obviously not controlling as title has not passed to Niagara Mohawk on any theory. Paragraph 4 of the answer is stricken and the application for summary judgment in favor of the petitioner Town of Wellsville and the respondents Doran Shutt and Wilma Shutt and against the respondent Niagara Mohawk Power Corporation is granted.


Section 631 of article 41 of the Civil Practice Act provides that an appeal may be taken from an order, affecting a substantial right, made in a special proceeding at a Special Term of the Supreme Court. Section 1459 of the Civil Practice Act provides *790that arbitration is a special proceeding. A proceeding' to stay arbitration falls within the scope of section 631. (Prashker, New York Practice [4th ed., 1959], p. 1005.) .(See, also, Matter of Marchant v. Mead-Morrison Mfg. Co.. 252 N. Y. 284, motion for reargument denied 253 N. Y. 534, appeal denied 282 U. S. 808 [1930] specifying an order for the <mask> of an agreement to arbitrate as a special proceeding.)


On August 15, 2014 Eleanor Licensing and Halicki filed this lawsuit to recover possession of, and legal title to, Eleanor No. 1. Their complaint alleged eight causes of action: breach of contract, breach of contract implied by conduct, breach of implied covenant of good faith and fair dealing, declaratory relief, return of personal property, quiet title, injunctive relief and <mask>.


It is worth noting that, in any event, the premise of Appellants' first point on appeal-that Appellants' breach of the Ground Lease was not before the trial court for determination-is flawed for several reasons. First, Appellants moved for directed verdict at the close of MPO's evidence and at the close of all of the evidence, arguing on both occasions that their breach of the Ground Lease had not been pleaded by MPO. The trial court denied the motion on both occasions. The trial court found that though breach of the Ground Lease was not pleaded by MPO as a part of its claim seeking damages for breach of the Settlement Agreement (Count II of the first amended petition), MPO did plead breach of the Ground Lease in connection with its equitable claim seeking <mask> of the Settlement Agreement (Count I of the first amended petition).6 The trial court thus found that Appellants' breach of the Ground Lease was an issue to be determined in connection with claims being tried to the court in equity. Appellants have neither addressed nor challenged this ruling.


Our analysis of petitioner’s claim that the District breached the collective bargaining agreement begins by noting that a CPLR article 78 proceeding is not the proper remedy to determine contractual rights (Matter of City Constr. Dev. v Commissioner of N. Y. State Off. of Gen. Servs., 176 AD2d 1145, 1146). Even if petitioner could establish a breach of the contract, the breach would not provide a legal right to CPLR article 78 relief (see, Matter of Goodstein Constr. Corp. v Gliedman, 69 NY2d 930, 931). Petitioner concedes that he seeks <mask>, which is an equitable remedy (see, Buteau v Biggar, 65 AD2d 652, 653) outside the scope of a CPLR article 78 proceeding (see, CPLR 7803).


The only remaining contention requiring comment is that because the profits on the plaintiff’s contract of resale are known it has an adequate remedy at law. The normal remedy for breach of an agreement to sell real property is <mask> (Baumann v. Pinckney, 118 N. Y. 604; Stone v. Lord, 80 N. Y. 60) and the buyer may be accorded this relief notwithstanding that he has agreed to resell it. (Restatement, Contracts, § 360.) While the defendant Dvora Sheinbaum cites statements of text writers which would seemingly allow a court to deny specific performance to a vendee who is under contract to resell, no controlling authority to this effect has been called to my attention. In the absence of such authority, the case must be determined upon its own facts. Here, not alone is it uncertain whether the plaintiff could successfully maintain a claim for the profit on its resale — as stated there is no proof of the usual basis for the allowance of a claim for special damages, such as notice to the defendants that the plaintiff had entered into its agreement with them in contemplation of the resale — but it is doubtful, to say the least, whether such damages, even if awarded, would be collectible. It is not to be overlooked that the defendant husband has not refused to honor his contract commitment to the plaintiff, in such situation to subject bim to a judgment for damages is hardly consonant with equity. A judgment against the wife would probably have to be satisfied out of the very property with which we are here concerned. In the circumstances, it cannot be said that the *1012plaintiff .has an adequate remedy at law and equity dictates that the plaintiff have judgment of specific performance.


Actually the problem here is divisible into two parts, as suggested by the court in its oral decision. Defendant is entitled to a decree of <mask> of the terms of the contract, but with closing and current adjustments of the items therein enumerated to be effectuated as of the time of the decree in place of the date originally fixed in the contract. The second — and more complex — problem is the assessment of responsibility and damages for the delay in closing from March 12, 1958, when the seller had cleared up the defect, to the date of decree.


“ Q. Would you agree to a restriction by this commission to allow this transaction to go into effect only if you agree not to register your P. S. C. authority? “A. Yes.” In answer to the question of the examiner, page 64: 11 Q. In other words by your statements, I should gather the inference that you do not desire to further conduct any operations in interstate or foreign commerce, is that correct? “ A. I would say yes. As far as I know right now, yes.” I am satisfied from this testimony that the defendant had not considered operating in interstate commerce by registering his *637Public Service Commission rights either in the negotiations leading up to the execution of the bill of sale or subsequently at the time of the Interstate Commerce Commission hearing, January 31,1955 • that at the time of the hearing he was willing to forego his right to file his public service certificate with the Interstate Commerce Commission in order to obtain the approval of the commission to the transfer of his interstate commerce certificate, Docket No. MC-66834 and that he consented at the hearing to the inclusion of the condition which was subsequently approved by the examiner and incorporated in the order of the Interstate Commerce Commission dated November 10,1955. Inasmuch as he was one of the petitioners making the application to the Interstate Commerce Commission, he cannot now be heard to say that a condition agreed upon and consented to by him and in which he was a petitioner, interposed a change in the terms of the proposed sale so that he could rely upon the condition to rescind the bill of sale. The principles of estoppel and waiver are, in my opinion, a bar to such contention. The defendant urges that inasmuch as this is an action for <mask>, it is an equity action addressed to the discretion of the court and that equitable principles must apply so that an unfair and unreasonable agreement should not be enforced in equity against him. The difficulty with this contention is that the defendant is seeking the protection of equity under circumstances which do not constitute “the coming into equity with clean hands.” Finally, the defendant urges that the court refused to admit certain evidence at the time of the trial and refused the defendant’s offer of proof thereof and that the court should, therefore, reopen the case and accept further evidence. The proof which was offered related to the state of defendant’s mind, namely, his intention in respect to the filing of his public service certificate with the Interstate Commerce Commission so as to be able to continue to engage in interstate operations after the sale of his certificate, No. MC-66834. The testimony so offered related to a period of time prior to the hearing, January 31, 1955, and the filing of the petition by the plaintiff and defendant for approval of the transfer by the Interstate Commerce Commission as required under the bill of sale which is the subject of this action. I have not changed my opinion as to the admissibility of this evidence. The offer in view of the very direct and specific testimony of the defendant at the Interstate Commerce Commission hearing, January 31, 1955, is surprising inasmuch as the defendant’s testimony indicates to me the exact contrary to that which it was indicated he would offer at the time of the trial.


*466Plaintiff in its action against St. Rita’s seeks an injunction barring sale of the property to a party other than itself, <mask> and other damages. Plaintiff contends that the application of Religious Corporations Law § 12 and Not-For-Profit Corporation Law § 511 resulted in a taking of plaintiff’s property without due process of law. The basis for the claim of unconstitutionality is that the application was heard without plaintiff having the ability to participate in the proceeding and to submit any testimony or evidence in support of the sale. As a result, plaintiff claims he has been summarily denied his right to participate in a special proceeding affecting his contract rights which is tantamount to a taking of property without due process of law. Plaintiff seeks to be heard by the court, at which time he contends he will be able to produce evidence and witnesses who will testify that the consideration was adequate at the time the sale was negotiated and the bargain was struck which was September 1984.


The administrator is plainly in need of advice and direction from the court because of the unusual and peculiar circumstances in which he finds himself. On the one hand, he wishes to preserve the Miltod offer and fears losing it, and on the other, he is faced with a strenuously argued position that the respondent Wicks has an enforcible contract which would support an action for <mask> (see Matter of Graves, 197 Misc. 555).


The second cause of action alleges improper termination of the OAAs entered into between the City and the bus companies and seeks <mask> thereof on the ground that the OAAs require that they may not be terminated by either the City or the bus companies without mutual consent except in two specific circumstances which do not apply here: (a) termination by the City as a result of a default or (b) termination by the City as a result of a change in control of one of the bus companies.


A further impediment to <mask> exists in the rent adjustment provision quoted above. A change in rent “ predicated on ” a change in cost of living index is not necessarily exactly proportionate to the index change. Moreover, the clause contains no indication of the time interval at which adjustments are to be made, nor is there any definition of what “ major changes ” means. It could, perhaps, be inferred from the provision for animal rental that adjustment was to be made annually, though the fact that the change was keyed to the cost of living index and that that index is reported monthly offers basis for a contrary inference. There is, however, no guide at all to What the word “ major ” means. The cost of living index portrays current prices in terms of points as compared with a base year and is reported in terms of tenths of a point. Major is a word of comparison, of relativity, and as here used refers to the cost of living index, not to the change in rent that an index change may produce. Even if the court accept plaintiff’s argument that the intention was to exclude changes that would produce only trivial changes in rent, are ‘1 trivial ’ ’ changes to be measured in terms of cents, dollars or tens of dollars, against a rental of $525 per month?


In Munson v. Syracuse, Geneva & Corning R. R. Co. (103 N. Y. 58) the court denied <mask> of a contract for the sale of land, saying, per Akdkews, J. (pp. 73-74): “ But we are of opinion that the contract of September 14, 1875, is repugnant to the great rule of law which invalidates all contracts made by a trustee or fiduciary, in which he is personally interested, at the election of the party he represents. There is no controversy as to the facts bringing the case as to Munson within the operation of the rule. He and his associates were dealing with a corporation in which Munson was a director, in a matter where the interests of the contracting parties were or might be in conflict. The contract bound the corporation to purchase, and Munson, as one of the directors, participated in the action of the corporation in assuming the obligation, and in binding itself to pay the price primarily agreed upon between the plaintiffs and Magee. He stood in the attitude of selling as owner and purchasing as trustee. The law permits no one to act in such inconsistent relations. It does not stop to inquire whether the contract or transaction was fair or unfair. It stops the inquiry when the relation is disclosed, and sets aside the transaction or refuses to enforce it, at the instance of the party whom the fiduciary undertook to represent, without undertaking to deal with the question of abstract justice in the particular case. It prevents frauds by making them as far as may be impossible, knowing that real motives often elude the most searching inquiry, and it leaves neither to judge nor jury the right to determine upon a consideration of its advantages or disadvantages, whether a contract made under such circumstances shall stand or fall * * * The value of the rule of equity, to which we have adverted, lies to a great extent in its stubbornness and inflexibility. Its rigidity gives it one of its chief uses as a preventive of discouraging influence, because it weakens the temptation to dishonesty or unfair dealing on the part of trustees, by vitiating, without attempt at discrimination, all transactions in which they assume the dual character of principal and representative.”


In any event, the clear weight of authority is that such liability does not exist. The rule in New York is that, in the absence of statute or contract, attorneys ’ fees are not recoverable against the opposite party (24 Carmody-Wait 2d, New York Practice, § 148:87). “ An action to enforce a separation agreement' does not come within the term ‘ matrimonial action ’ as defined in the Civil Practice Law and Bules [CPLB 105 (m)], and such actions are not mentioned in any of the provisions of the Domestic Belations Law which relate to allowances and awards in specific actions or proceedings and the enforcement of judgments or orders entered therein; hence, the court does not have the power to make an order requiring the husband to pay alimony and counsel fees in an action for <mask> of a separation agreement.” (16 N. Y. Jur., Domestic Belations, § 706, p. 270). (See, also, Marson v. Marson, 6 A D 2d 786; Schreiber v. Schreiber, 34 A D 2d 681; Berry v. Jaworski, 187 Misc. 481; 19 Carmody-Wait 2d, New York Practice, §117:57.)


*1002By the instant action plaintiff seeks to obtain what he contracted for in specie, to wit, a store in a particular neighborhood engaged in a business similar to other stores presently being conducted by the plaintiff, in other parts of the Borough of Brooklyn, the good will pertaining thereto, a restrictive covenant clause barring competition from the defendant for a period of time and a five-year lease covering the premises with an option to renew same for two additional five-year periods; “ which to him has some special value, and which he cannot readily obtain in the market” (Butler v. Wright, 186 N. Y. 259, 262). As regards the interest in realty, it is a general rule that the court has jurisdiction “to enforce <mask> of an executory contract to lease premises.” (Shea v. Keeney, 155 App. Div. 628, 630.)


The conclusion is however justified that the issuance of injunctions or decrees of <mask> falls on the outer perimeter of this court’s jurisdiction. This is not because they are equitable in nature, but because the Court of Claims Act does not specifically refer to them, necessitating the position taken in Psaty (supra) that such relief must be incidental to a claim for money damages.


*703The facts are undisputed that the plaintiffs and defendants, except Park Ave. Structures, Inc., entered into a partnership on the 12th day of August, 1960; that the purpose of said partnership was to purchase a large tract of land and conduct and carry on the business of builders; that they planned to sell the various improved parcels and upon the sale of all its real property, to terminate the partnership. The real property and subject matter of this partition action is the same property which is presently subject to an action for <mask> by the defendant Park Ave. Structures, Inc., resulting from the alleged failure of the partnership or its members to comply with the terms of a contract to sell.


42. “Each party to a contract has a duty to do everything that the contract presupposes that he will do to accomplish its purpose [citations] and a duty not to prevent or hinder performance by the other party.” (Bewick v. Mecham (1945) 26 Cal.2d 92, 99.) In Bewick, the defendant’s actions “prevented the determination of the purchase price by the method contemplated by the contract.” (Ibid.) “Defendant’s obvious purpose was to make the contract inoperative and to prevent plaintiff from seeking <mask> after the price was determined by the appraisers. A party who prevents fulfillment of a condition of his own obligation commits a breach of contract [citations] and cannot rely on such condition to defeat his liability.” (Ibid.) Moreover, section 36 (J) of the lease contained express covenants requiring the parties cooperate so the terms of the right of first refusal could be effectuated: “Further Assurances: Each party agrees to perform an further acts and execute and deliver any additional documents that may be reasonably necessary to carry out the provisions of this Paragraph 36.” Based on the evidence provided, for months TTP did not disclose to J&A it was in escrow to sell the Tower Theatre parcel to Adventure Church. Even after J&A became aware of a sale, TTP refused to provide the purchase agreement or the amount of the third party offer, overstated the sales price, and only set unilateral terms of the sale of the brewery premises. Its communications ignored the language contained in the right of first refusal regarding a matching price, and instead asserted the price it offered was fair and reasonable. TTP only disclosed the sales agreement after litigation commenced and J&A was in a position to compel the disclosure through discovery. Once J&A was provided the third party offer from the church, it provided its written notice to exercise the right of first refusal within 12 days, on May 3, 2021. TTP, in turn, provided a counteroffer. It responded it was willing to sell the brewery premises at the previously set price of $1.268 million if J&A would meet certain conditions including dismissing the lawsuit, expunging the lis pendens, and paying TTP $25,000 to cover litigation fees and


9. request for the trial court to “find no ambiguity with the plea and require <mask> of the plea agreement and allow [appellant] to withdraw her plea of guilty.” On May 31, 2019, the trial court heard oral arguments regarding appellant’s motion. The court ruled that the modifier referring “to staff” was ambiguous because “the assault and battery does not necessarily have to refer to staff the way the plea form is written.” The court determined that the ambiguity was resolved by the transcript from the 2017 change of plea hearing. The court noted that, when it discussed this with appellant at that hearing, the restrictions had been expressed as applying to any assault and battery. Appellant had agreed with that representation. The court determined that appellant had intended to accept those terms and conditions. The court further concluded that appellant had subsequently received 115’s involving assault and battery, so she did not qualify for relief. At sentencing, the trial court stated that appellant’s plea bargain had required her to not have any “115s” regarding “assault, battery, gassing nonstaff/staff.” (Italics added.) The court sentenced appellant to four years in state prison in conformity with the plea agreement. 7 DISCUSSION In the present appeal, appellant seeks specific performance of the plea bargain. She contends that she complied with the negotiated terms because she did not receive any 115 violations involving staff during the two years following her change of plea. She argues that this criminal case should be dismissed. In contrast, respondent contends that appellant violated the plea agreement because she incurred 115 violations involving nonstaff. Respondent asserts that specific performance is inappropriate. Respondent urges us to affirm the judgment.


The provisions added by plaintiff’s attorney were (1) that the northerly line of the premises contracted to be sold was contiguous to land known as the Bay side Golf Club, (2) that the date of closing be fixed as September 5, 1956 at 10:00 a.m. provided taxes be apportioned as of July 5, 1956 and (3) that the sale was conditioned upon the purchaser or his assignee acquiring title to the Bayside Golf Course, pursuant to a contract dated March 2,1956, and that if plaintiff could not acquire title to the Golf Course property, then the seller would return the moneys paid by purchaser, and upon such repayment the contract would be cancelled without any further liability of either party to the other (italics supplied). Further, that if the purchaser defaulted, the sole liability of the purchaser would be limited to the loss of the contract payment which the seller was to retain as liquidated damages and that the seller expressly waived the right to any and all claims for damages and/or the right of action for <mask>.


Plaintiff’s claim for relief, in any event, is not based directly on defendants’ violation of the Multiple Dwelling Law, but is based on their breach of contractual obligations under the bylaws and other applicable contracts between the cooperative and its building’s residents, including proprietary leases, as well as the building’s certificate of occupancy. Plaintiff seeks an injunction akin to <mask>: that O’Neill’s unit be owned and occupied by a family with an artist certified pursuant to Multiple Dwelling Law § 276, as required by these contracts, as well as the certificate of occupancy.


Further, to the extent that Lantel argues that Petrolink's letter of August 25, 2011 did not constitute a valid exercise of the option because it was not an "unconditional acceptance of the terms of the purchase option" (capitalization omitted), such an argument is not one in support of affirmance of the *386judgment, but rather, is an attack on the entire premise of the judgment.7 The judgment that the court entered *292is based on the fact that Petrolink's valid exercise of the purchase option caused a contract for purchase and sale to come into existence, and it is this contract for purchase and sale that the court ordered Lantel to specifically perform in the judgment. Lantel's argument that the notice was insufficient to constitute a valid exercise of the purchase argument is not, therefore, an argument in support of affirming the judgment; rather, it is an argument that would require reversal of the judgment. If Lantel wanted to challenge the validity of the court's finding that Petrolink validly exercised the purchase option?a finding that is a prerequisite to the court's ultimate determination that Petrolink was entitled to <mask>, it would have had to appeal from the judgment and contend that the trial court erred in making that finding. It did not do so.


The plaintiff, in his memorandum of law seeks to establish by reference to the history of the statute and other means that the recording of the Murphy contract did not affect plaintiff’s right to <mask>. Where, as here, however, the words of the statute are free from ambiguity and express plainly, clearly and distinctly the legislative intent, resort may not be had to other means of interpretation (State Farm Mut. Auto Ins. Co. v Westlake, 35 NY2d 587, 592; McKinney’s Cons. Laws of N.Y., Book 1, Statutes, § 76). Under the plain wording of the statute, the La Marche contract is void as against the Murphys. The court finds as a matter of law that the Murphys contracted in good faith for the purchase of the property. The statute does not specify that the subsequent contract vendees must have good faith (i.e., lack of knowledge of a prior contract) at the time they receive the deed or even at the time they record their contract. The statute merely specifies that they "contract” in good faith and this they did. The filing of the lis pendens by plaintiff on May 30, 1975 cannot in anywise vitiate the plain mandate of section 294.


Carolyn E. Demarest, J. In motion sequence No. 1, 33 Development Inc. moves to dismiss the present complaint brought by 929 Flushing LLC and vacate the notice of pendency. Plaintiff cross-moves under motion sequence No. 2 for summary judgment and <mask>. The instant action arises out of the execution of a short form agreement titled “Binder of Sale” (the binder) pertaining to real property located at 929 Flushing Avenue, Brooklyn, New York 11206. Though the parties never fully executed a formal agreement, plaintiff contends that the binder, executed by Joel Jacob as purchaser and Anita Wong “as managing agent,” without further identifying the seller, created a legally enforceable contract that requires defendant to sell the premises to plaintiff.


Trey cites Looney v. Sun Oil Co. , 170 S.W.2d 297 (Tex.Civ.App.-Texarkana 1943, writ ref'd w.o.m.) for the proposition that the exclusive jurisdiction of actions to annul the Commission's orders are vested in Travis County. In that case, a party by deed was limited to drilling one well on a particular tract of land, but obtained permits from the Commission to drill several additional wells. Id. at 298. A party with standing under the deed filed suit for <mask> to limit the number of wells to that allowed by the deed. Id. The Looney court indeed noted the general proposition that "jurisdiction is vested in the district courts of Travis County" for actions to set aside or annul the orders of the Commission. Id. at 299. But in the next paragraph the court stated the "fact that the relief here sought, if sustained, may have the effect, indirectly, of destroying the value of defendant's permit to operate wells Nos. 2, 3 and 4, will not deprive the District Court of Gregg County of jurisdiction *215to hear and adjudicate this issue of the enforcement of the alleged contractual rights." Id. at 300 (the court ultimately denied the equitable relief because all the necessary parties had not been joined).


NVM filed this action against Longs and CVS for breach of contract to recover the additional CAM charges for 2012, for <mask> to enforce its option under the construction agreement, and for declaratory relief to enforce the additional CAM charge provision and to enforce its option to *602repurchase the property.3 Defendants cross-complained, seeking the return of the additional CAM charges they assert were overpaid.4 The defendants moved for summary judgment on the complaint. *371NVM did not substantially dispute defendants' statement of material facts. However, it disputed defendants' characterization of the Longs/CVS transaction as solely a stock acquisition. Although it could not dispute that Longs continued to hold title to the property, it maintained Longs was merely a shell entity for the sole purpose of holding legal title, and that CVS operated and controlled the property. NVM adduced evidence that the Longs stores have been renamed CVS, the Longs headquarters have been moved to CVS's headquarters, and all of Longs's executives and employees at the headquarters office were terminated or resigned after the merger.


*756The Court finds as a matter of law that the limitations period relating to the defendant’s action seeking to preclude the entry of a QDRO, and thus subjecting defendant’s retirement benefits to equitable distribution, accrued after he reached pay status in the retirement benefits. (Cf. Tauber v Lebow, 65 NY2d 596 [1985] [preceding the enactment of CPLR 211 (e), and finding a child support and alimony arrears claim, arising under a separation agreement incorporated but not merged into a judgment of divorce, time barred]; Dolan v Dolan, 172 AD2d 1013 [4th Dept 1991] [<mask> for sale of marital property was not commenced within six years of former husband’s re-marriage in accordance with nonmerged separation agreement, and thus was time barred]; see also, Matter of Downer v Downer, 199 AD2d 1092 [4th Dept 1993]; Yerdon v Yerdon, 190 AD2d 1046 [4th Dept 1993].) Stated otherwise, since plaintiffs right to receive a distribution under the defendant’s retirement plan did not accrue until after her former husband reached pay status, the six-year limitation period did not begin to run until his retirement date. (Cf. Long v Paige, supra.) The case of Yecies v Sullivan (221 AD2d 433 [2d Dept 1995]) relied on by defendant is distinguishable as it relates to the equitable distribution of a present interest in real property, divided under a judgment of divorce.


The Act thus anticipates that a party to an arbitration agreement may file a lawsuit in court, and it describes the procedural vehicles through which the *767opposing party may respond-i.e., it may file either an answer to the complaint or a section 1281.2 petition to compel. The Act also prescribes the remedy the court must order if any party demands arbitration of an arbitrable dispute that is the subject of a lawsuit-<mask> of the arbitration agreement, not a damages award for breach of contract. (See, e.g., Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1057, 201 Cal.Rptr.3d 318 ["A petition to compel arbitration is a suit in equity seeking specific performance of an arbitration agreement."].)


The evidence here more nearly resembles that in Foreman v. Foreman (251 N. Y. 237). There, as here, the relationship between the parties was the confidential one of husband and wife. The consideration for the purchase of the realty was paid by the husband. Title was taken in the name of the wife. She agreed to give him a deed upon demand and to dispose of the land or proceeds in accordance with his wishes. The husband in that case paid the taxes, the insurance premiums, the interest on the mortgages and the cost of repairs. Here, the husband or the holding company for him, from the time of the original conveyances to the wife, collected the rents and made the necessary expenditures for the carrying charges. The wife in the lifetime of the husband made no objection to his use of the rents. “ The dominion that goes with ownership was continuously his. * * * The rule is now settled by repeated judgments of this court that the statute does not obstruct the recognition of a constructive trust affecting an interest in land where a confidential relation would be abused if there were repudiation, without redress, of a trust orally declared.” (Cardozo, Ch. J., citing Sinclair v. Purdy, 235 N. Y. 245, 253; Gallagher v. Gallagher, 135 App. Div. 457; 202 N. Y. 572, and other cases.) In the Foreman case quotation was made from Sinclair v. Purdy (supra): “ It is not the promise only, nor the breach only, but unjust enrichment under cover of the relation of confidence, which puts *743the court in motion.” A constructive trust was found to have been established and the determination of the lower courts that <mask> could not be enforced because of the provisions of sections 94 and 242, Real Property Law, was reversed.


Subsequent to the foregoing, plaintiff commenced the within action for legal malpractice and breach of contract on March 6, 1991. It is alleged that the defendants negligently failed to obtain a stay of the Appellate Division order in Da Silva I, thereby permitting the notice of pendency to be cancelled. It is asserted that, as a result, defendants’ acts deprived plaintiff of the right to <mask> of the binder agreement, and the alternative relief of money damages. It is further asserted that defendant AA&F negligently failed to seek such a stay and to reinstate the notice of pendency. Further, plaintiff claims that AA&F’s untimely motion to amend the remittitur deprived him of the right to recover money damages from the sellers. He now seeks to recover damages of $20 million, which includes the loss of the bargain and the loss of future profits. He further seeks to recover $160,000 paid to defendants for legal services rendered in the two underlying actions. Defendants have answered the complaint, issue having been joined on April 30, 1991.


On the whole, if we agree with the chancellor, that the will is to be retained so far as it creates a trust power of apportionment, I am unable to see any reason for denying its operation as to other provisions equally valid ; and on the other hand, if we hold with the chancellor that the land goes to the heirs by operation of law, it seems to me the very principle which gives it that direction, withdraws the will altogether, and leaves the statute of descents to perform its office. Although the appellant’s points presented this alternative view of the case, yet the counsel on both sides agreed on the argument that the land descended. In either view, the respondent is unable to make such a title as he contracted to convey. The decree for a <mask> was, therefore, erroneous, and should be reversed.


(2) If the plaintiffs shall fail in establishing their contract so that they are not entitled to <mask> because the defendants have established their affirmative defense, and by the same token their cause of action against the third party, we have a situation where the defendants have established the liability of the third party without damages to themselves because the plaintiffs have failed.


It is well settled that <mask> can be decreed in such a case only when there has been part performance unequivocally referrable to the alleged agreement. The payment of a portion o'f the purchase price is not such part performance (Hummell v. Cruikshank, 280 App. Div. 47, 49; Galletta v. Zuckerman, 122 N. Y. S. 2d 10, 14) and no other part performance is alleged.


In the ninth counterclaim, partial defense and offset, it is alleged that the assignor failed to perform its covenant to obtain the agreed financing for payment of the purchase price in the manner provided by the contract. The pleading is good as a counterclaim only, under which, if a sum is found due to the plaintiff, the court may mold a decree so as to provide for payment as provided in the contract, if the defendant is found entitled thereto. The relief sought is in the nature of <mask>. The pleading is good as a counterclaim only and otherwise the motion is granted.


If, in exchange for the promise from the District Attorney, the defendant had relinquished some meaningful right or rights to which he would otherwise have been entitled, then steps would have had to be taken to restore him to the position he was in prior to the understanding with the prosecution, or else <mask> of the agreement might have been appropriate. But in the instant case, the defendant has lost no rights or been prejudiced in any way, except that he is now confronted with felony charges instead of misdemeanors, exactly the position he was in at the start of the proceedings against him.


In 5 Wait’s Actions and Defenses, 831, it is stated as' follows : “ A suit for <mask>, like that of foreclosure, is of a twofold character, partly vn personam and partly vn rem. The court may enforce the contract either by ■operating upon the person to compel a conveyance, or may •pass the title of the land by decree.”


Following the jury verdicts, the parties extensively briefed the remaining issues to be determined by the court in equity. Ultimately, the trial court entered its judgment dated January 11, 2017 ("Judgment"). The Judgment incorporated the jury verdicts, and entered judgment in favor of MPO and against Appellants on Count I, MPO's claim for <mask> of the Settlement Agreement. The Judgment also entered judgment in favor of MPO on Count II of Appellants' counterclaims which had sought a declaration terminating the Ground Lease and ordering the payment of attorneys' fees for MPO's breach of the Ground Lease by not paying rent. With respect to Appellants' declaratory judgment claim, the trial court found that Davis and DSII were the first to breach the Ground Lease when they failed to close on the transactions anticipated by the Settlement Agreement, and that the failure to close was not in good faith and warranted the denial of equitable relief.


As a general rule, the court of chancery will not interfere to compel a <mask> of a sale of stock. But an agreement to transfer certain specified shares, founded upon a good' consideration actually paid therefor, or an actual hypothecation thereof for the payment of a specified debt, but not intimated on the books of the company, although it does not transfer the legal title to the stock, is a good equitable transfer or hypothecation thereof, which will give to such assignee a preferable claim over any person who has not a prior equity, unless he has obtained a legal title to the stock by an actual assignment upon the books of the corporation without notice of such equity. This is upon the maxim that where the equities of the parties are equal, and' neither has a legal title, he who is first in time is strongest in right. Qui prior est in tempore, potior est in jure. And as the delivery of the scrip to Bartow with a blank endorsement- thereon, to secure the payment of Barker’s note, gave to him an equitable lien upon this stock to that extent, so the subsequent delivery of the scrip to Kortright, for the security of Bartow’s debt to him, transferred an equitable interest to the same extent, as a- pledge not merely of the stock but also of the $10,000 note for which Bartow held the scrip in security. I have no doubt, therefore, as between Kortright and- the Commercial Bank of Albany, or any other creditors of Bartow, that the equity of Kortright is the strongest; the legal title to the stock being *355ctill in Barker, so that neither of the claimants under Bar-tow has any legal title to the same.


But the plaintiff has not shown by his complaint that he is entitled to the equitable relief asked. The contract, a <mask> of which is sought to be enforced, was entered into in 1842. A part of the consideration was acknowledged to have been received, and the plaintiff agreed to pay the residue, $3019 33, upon the 7th of March, 1845, upon the receipt of which the defendant Rogers agreed to convey the land. It does not appear by the complaint, that the defendant was ever called upon to perform, or that the plaintiff ever offered to pay, or tendered to him the $3019 33, but he rests his equity entirely upon the fact, that Rogers fioe years after the time that the plaintiff was bound to perform, that is on March 1st, 1850, sold and conveyed the property to the defendant Ogilvie, for what the plaintiff regards as an inadequate consideration. It seems that he suffered five years to elapse without doing any thing in performance of the contract, and he now comes into court with the averment that he is ready and willing to perform, and asks that the conveyance to Ogilvie may be declared void, and set aside, and that Rogers may be required to convey the land to him, the plaintiff, upon receiving the $3019 33 with interest, and all sums that Rogers may have paid for taxes or assessments ; or that the land, which is averred to be now worth $10,000, may be sold by order of the court, and after deducting from the proceeds of the sale the amount to which Rogers is entitled, that the residue may be paid to him, the plaintiff.


Petitioner is relying upon the equitable powers of the Surrogate as defined in section 40 of the Surrogate’s Court Act. Bespondents do not deny that courts of equity have the power to compel <mask> of void contracts in certain types of situations, which are generally referred to as involving part performance, but claim that the Surrogate’s Court is not a court of equity, and its only jurisdiction in this proceeding depends upon compliance with section 227; in other words, even if petitioner had alleged all of the essential elements of a contract, the petitioner could never allege anything but a void contract.


Defendants raise six affirmative defenses as bases for judgment in their favor. The first defense asserting that the complaint and affidavits submitted by plaintiff fail to state a cause of action is without merit. Plaintiff has established the existence of Option No. 2, its election to exercise its right to purchase the strip of land under that option, and the refusal of defendants to deed over the property or to submit to the value assessment procedure enunciated in the option agreement. Once plaintiff notified defendants of its election to exercise its option, there existed a binding contract for the sale of realty which may be enforced by <mask>. (Trustees of Hamilton Coll. v Roberts, 223 NY 56; Rockland-Rockport Line Co. v Leary, 203 NY 469; 62 NY Jur, Vendor and Purchaser, § 182, pp 472-473.) Accordingly, plaintiff has established a prima facie case and is entitled to summary judgment unless defendants come forward with evidence which either raises a triable issue of fact or establishes a meritorious defense entitling defendants to judgment. (See Zuckerman v City of New York, 49 NY2d 557, 562.)


Additionally, the reference to legal or equitable relief in conjunction with any other pleading or filing denotes the traditional law-equity distinction that lives on in what are termed the "legal" versus "equitable" remedies obtainable when liability under some substantive right of recovery is proven , i.e., the "legal" remedy of money damages versus the equitable relief of injunctions, <mask>, and the like. State ex rel. Best v. Harper , No. 16-0647, --- S.W.3d ----, ----, 2018 WL 3207125, at *4 (Tex. June 29, 2018) ; 1 DAN B. DOBBS , LAW OF REMEDIES § 1.2 (2d ed. 1993) ("The damages remedy was historically a legal remedy. The injunction and most other coercive remedies were equitable."). A third-party discovery subpoena does not seek legal or equitable relief in the traditional sense, and we decline to extend its reach here.


But let us test the question by a principle which cannot err. Suppose Hubbard and Orcutt had (as they probably would have done in the event of the contract proving a good one) insisted upon the performance of the contract by the plaintiffs in error; and suppose the latter had refused to give a conveyance pursuant to the terms of the contract. Does any man doubt but that the court of chancery would have entertained a bill, and decreed a <mask> 1 If so, the contract is mutually binding, and good against all the parties. This test must be conclusive against the defendants in error.


As noted above, plaintiffs’ third cause of action seeks compensatory damages, which include their attorneys’ fees, *604and consequential damages. As provided in paragraph 33 of the rider to the contract, plaintiffs are entitled to recover their reasonable attorneys’ fees as the prevailing party in this action for <mask> arising out of defendants’ breach of the contract. Plaintiffs shall submit an affirmation of counsel, together with appropriate documentation, as to the basis of the legal fees charged to them, on notice to defendants, within 30 days of the date of this decision. Defendants may respond to such demand for attorneys’ fees within 20 days thereafter. If the amount to be awarded as reasonable attorneys’ fees cannot be agreed upon by the parties, a hearing will be ordered.


Plaintiffs and defendant entered into a contract for the sale of premises 221-227 East 5th Street, Brooklyn, New York. Prior to closing, plaintiffs’ attorneys advised defendant that the contract was being assigned to Kensington Associates, a partnership in which plaintiffs were 2 of 5 partners. The attorneys further advised that the assignment will be executed at the time of closing and requested that all documents be made out in the name of the assignee. On the adjourned date, the closing did not take place and the plaintiffs commenced an action for <mask> and the lis pendens was filed in the Kings County Clerk’s office.


On this point, it is helpful to note that the initial burden of proving the proper remedy remains on the buyer (UCC 2-715, Comment 4). In this instance, plaintiff’s very attempt to prove qualifiable special performance damages has also proved: (a) the value of the disputed automobile was readily established by expert sources; (b) the adequacy of legal contract damages; and (c) the availability of "a substitute transaction [which] is generally a more efficient way to prevent injury than is a suit for <mask> * * * [and gives] a sound economic basis for limiting the injured party to damages” (see, Restatement [Second] of Contracts § 360, comment c).


The defendant urges that the whole contract must be enforced,' or no part of it will be. That rule does not apply where the part which cannot be enforced is separable from the other. Where a vendor is unable to completely perform his contract, it is true that the ordinary rule is that the vendee will not be compelled to^ accept a part. Yet even to this rule there are exceptions, notably when one part is separable from the other. (Ogden v. Fossick, 4 DeGex., F. & J., 426; Powell v. Elliot, L. R., 10 Ch., 424; Wilkinson v. Clements, L. R., 8 Ch. App., 96.) But, on the other hand, when the vendee claims performance and the vendor is unable to make complete performances, the vendee is allowed to have all he can get, with compensation for the deficiency. (Morss v. Elmendorf, 11 Paige, 277.) The principle is, that the party who-is not in fault shall be entitled to a <mask> of as much of the contract as the other can perform. Here the plaintiffs are not in fault, and the defendant willfully refuses to perform. There is no reason why the court should not compel a specific performance so far as this can be done. (Story’s Eq., 774, 779 ; Pomeroy’s Eq., § 1407 n.) A further matter is the agreement to stop all passenger trains at this station. Some objection has been made to the granting of specific performance where the contract requires continuous personal action running through an indefinite period of time. (Marble Co. v. Ripley, 10 Wall., 339.) But the propriety of granting this relief in a case like the present was recognized in Phillip v. Great Western Railway Company (L. R., 7 Ch. App., 409). Although it was held that a train carrying mails was not “ under the control ” of the company, and, therefore, the relief was denied. (See, also, Rigby v. G. W. Ry. Co., 2 Phillips, 44.)


There is nothing in the pleadings or findings asking the restoration to Burdick or anybody else of his half of tbe contract. As this contract was entire, it is self-evident one-half being dead and extinguished that tbe other half — tbe surviving part — cannot be specifically enforced under the well established principles of law as *82above stated. Tlie extinguishment of the undivided half destroyed the whole to such extent as to prevent <mask>.


If the plaintiffs have a specific lien, acquired by the contract with Palmer, upon the property which by it was to be conveyed to them, it can be enforced only in equity, and it would be manifestly unjust to refuse to do so, and turn them over for relief to their remedy as general creditors against an insolvent debtor. It cannot be doubted that the plaintiffs acquired by their contract a specific lien, for it is such lien that makes the vendor a trustee of the property for their use, and authorizes the court to decree <mask> of such contract in proper cases.' It is the dictate of equity that such lien should' be enforced in such manner as to ensure them an effectual remedy for the injury they have suffered, and this principle I think is sustained by authority.


On January 24, 2012, Petrolink sued Lantel for, among other things, <mask>, asserting that it had exercised its option to purchase the property and had agreed to purchase it at a price equal to the fair market value of the property based on an appraisal, and that it had offered to tender the value established by its own appraisal-i.e., $320,000.00. Lantel filed a cross-complaint, alleging breach of contract and breach of the covenant of good faith and fair dealing with respect to the lease, and a claim for specific performance, arguing that Petrolink was the breaching party or the party that wrongfully *288refused to consummate the sales transaction for the property. Lantel alleged that Petrolink had "provided notice to [Lantel] that it was exercising its right to purchase Parcel 1 pursuant to Section 21 of the Lease," and that Lantel was "willing, ready, and able to perform all conditions, covenants, obligations and promises required of it under the Lease, including selling" the property to Petrolink for the value established by Lantel's appraisal-i.e., $ 1,615,000.00.


*760This is because "[i]mmunity 'implicates a court's subject matter jurisdiction over pending claims,' and '[w]ithout jurisdiction, the court cannot proceed at all in any cause; it may not assume jurisdiction for the purpose of deciding the merits of the case.' " Zachry Constr. Corp. v. Port of Houston Auth. of Harris Cnty. , 449 S.W.3d 98, 108 (Tex. 2014) (quoting Rusk State Hosp. v. Black , 392 S.W.3d 88, 95 (Tex. 2012) ; Fin. Comm'n of Tex. v. Norwood , 418 S.W.3d 566, 578 (Tex. 2013) ). Therefore, assuming the Memorandum is a valid contract breached by the City when it failed to develop the Cherry Street Property into a park, we must first decide whether the Act waives the City's immunity from suit on a breach of contract claim for <mask>. See id.


On or about February 8, 1985 plaintiffs entered into a written agreement with the Murphys for the purchase of their condominium unit. The plaintiffs concede that they were informed of the provision in the bylaws giving the Board a right of first refusal. The contract of sale also required the Murphys to seek an "early determination” as to whether the Board intended to exercise its right of first refusal. Plaintiffs proceeded to obtain the necessary financing and a closing date was set for May 25, 1985. In or about the first week of May 1985, the Murphys formally notified the Board of the purchase price and the terms of the proposed sale. Thereafter, at the next regularly scheduled meeting, the Board decided to exercise its right of first refusal and designated another unit owner to purchase the unit at the same price and terms offered by the plaintiffs. The plaintiffs have commenced this action seeking <mask> of their contract of sale. The matter is now before the court on the motion of plaintiffs for an order enjoining the defendants, pendente lite, from selling the condominium unit to anyone other than plaintiffs.


It is further alleged that the county will have wasted some 3 million dollars in money already expended in furtherance of the domed stadium project and will be subject to the risk of loss of damages for breach of the contract of August 8, 1969. These last two items do bear some causal relationship to the claimed illegality and more properly fall into the traditional category of public waste. On the other hand, under the circumstances of this case, wherein the illegality is dependent upon the resolution of complex factual issues, allegations of public waste do not afford standing to maintain the action. Moreover, even if illegality should be conceded, the type of relief sought in the complaint, to wit, <mask> of a multi-million dollar project and a 20-year management contract lies beyond the scope of equitable relief afforded by section 51 of the General Municipal Law.


So far, it may be said, upon the authority of these early cases, that a court of equity, where it cannot, or where it considers, in view of all the circumstances, that it ought not, to decree a <mask>, may, in lieu thereof, award an issue to ascertain the plaintiff’s damages; dr, if it can do so, may fix the amount of the compensation by the application of some equitable rule or measure.


Finally, plaintiff contends that defendant’s first counterclaim is forestalled by the equitable doctrines of estoppel, waiver, and laches. Plaintiff argues that defendant waived and is now estopped from seeking <mask> because it explicitly rejected the air rights fee when given the opportunity in March 2013 and again in January 2014 to close. Plaintiff relied on defendant’s refusal to close by (1) retaining a consultant to negotiate with the City, the party that granted title to the predecessor owner, in an attempt to bargain for a new deed conveying *987the bottom three floors; and (2) by making substantial improvements to the building. Plaintiff also contends that all four elements of the doctrine of laches have been met by defendant’s year-plus delay in seeking to close and accept the air rights fee (see Dwyer v Mazzola, 171 AD2d 726, 727 [2d Dept 1991] [“The four basic elements of laches are, (1) conduct by an offending party giving rise to the situation complained of, (2) delay by the complainant asserting his or her claim for relief despite the opportunity to do so, (3) lack of knowledge or notice on the part of the offending party that the complainant would assert his or her claim for relief, and (4) injury or prejudice to the offending party in the event that relief is accorded the complainant”]).