majority">Chester, J.:

The action is one in equity for the specific performance of a contract. The plaintiff sought to require the defendant to execute a mortgage on certain premises, upon which a building had been constructed by the plaintiff under a contract between him and the defendant Bosoff, for which, the plaintiff alleged that the defendant Bosoff was to secure to be paid to the plaintiff $1,200 by a first mortgage on the premises. The plaintiff alleged in his complaint that he had “in all things performed the said agreement on his part to be performed and duly constructed said building as he stipulated in said agreement to do.” While the building was being • constructed by the plaintiff thé defendant Ames loaned the defendant Bosoff the sum of $1,200 and received therefor a first bond and .mortgage upon the premises described in the complaint.

The plaintiff alleged that at the time of the execution of such . mortgage to the defendant Ames she had full knowledge of the agreement between the. plaintiff and the deféndant that the plaintiff was entitled to a first mortgage on the premises to secure the payment of the sum-of $.1,200.' The court found that neither at the time of the execution of the mortgage to Ames, or prior thereto, did she have any knowledge or notice that the plaintiff claimed the right or had the right to a first mortgage or to any mortgage upon the premises described in the complaint for any amount. It was shown that she had no knowledge unless she ¡was charged with the knowledge which the attorney who examined the title and who procured the money from her to make the loan had, but it clearly appeared that the attorney was not her -agent in examining the title and that he examined it for Bosoff, for whom he procured the loan and by whom he was paid for his services. So that if he had any such knowledge Mrs. Ames, would not be bound thereby. Even as to the claim that the attorney had any such knowledge there was a *3question of fact for the determination of the court, and the finding that he had no such - knowledge is supported by sufficient evidence.

The court has also found in great detail the respects in which the building did not conform in workmanship and ^materials furnished with the contract, and in addition thereto has found “ that substantial, material and structural defects pervade the whole work and that said defects were intentional on the part of the plaintiff.” These findings appear to be sustained by ample testimony.

The plaintiff having sought to recover upon the allegation of full performance on his part, the burden "was upon him to show that to entitle him to the aid of the court in compelling performance by the other party. He failed to'show that, and if the defendant Bosoff had moved to dismiss the complaint at the close of plaintiff’s proof it would have been proper to have granted the motion upon that ground. When it affirmatively appeared in the defendant’s evidence that the plaintiff had failed in many substantial respects to perform his contract the complaint was properly dismissed upon the merits. Authority for so plain a proposition is' hardly deemed essential. Beference to but one, therefore, will be made.

Chancellor Kent in Benedict v. Lynch (1 Johns. Ch. 370) says : “It may, then, be laid down as an acknowledged rule1 in courts of equity (and so the rule is considered in the elementary treatises on this subject) (Newland on Contracts, 242; Sug. L. of Vend. 3d Lond. edit. 2.68), that where the party who applies for a'specific performance has omitted to execute his part of the contract by the time appointed for that purpose, without being able to assign any sufficient justification or excuse for his delay; and when there is nothing in the acts dr conduct of the other party that amounts to an acquiescence in that delay, the court will hot compel a specific performance.”

The appellant also contends that the court improperly denied him leave to amend his complaint, and he argues-that such amendment has deprived him of any recovery in the action, even for the value of the work performed and materials furnished, on the theory that he had not fully performed. The application to amend was made at the close of all the testimony, and the proposed amendment if it had been allowed by the court would not have aided the plaintiff, for *4he did not seek by the amendment to change the action from one for specific performance to One to enable him to recover as for a quantum meruit. Nor on the trial had the plaintiff Offered any evidence as to,the .value of the, work done or materials furnished by him in ,or upon the^ building, or tending to show such value, and if he deemed himself entitled to recover upon such qxvantum meruit it was incumbent upon him to produce such testimony, (Spence v. Ham, 163 N. Y. 220; Norton v. U. S.Wood Preserving Co., 89 App. Div. 237, 241.) So that if the amendment had been allowed there could have been no recovery, under the evidence, upon the theory now insisted upon by the. appellant. Nor indeed Would such a recovery have béen', permissible under the complaint as interposed, or under the proposed amended coinplaint.

We; have examined the numerous exceptions to the rulings of the court upon the admission and exclusion of evidence and find none that justifies a reversal. . -

The question is not. presented, and-we are -not required to decide on this appeal, whether the judgment dismissing the complaint upon the merits would be a bar to another action • upon the part of the plaintiff to recover from the defendant Rosoffi for the value of the work performed and the materials furnishéd- by him- for the defendant Rosoli.

The judgment must be affirmed, with costs. "

' Judgment unanimously affirmed, with costs. '

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