[Vol. 125. Second Department, March, 1908. commissioners to recommend these matters if they were not to be acted upon, and this was provided for in section 508 of the Greater New York charter, which, so far as material, has already been set forth. Section 5 of chapter 725 of the Laws of 1905, which is urged as repealing the provisions of the charter above referred to, provides as follows: "In all such proceedings the commissioners of appraisal appointed thereunder shall receive as compensation such fees and expenses as may be taxed by the court upon notice to the corporation counsel. The corporation counsel of the city of New York shall either in person or by such assistants or other counsel as he shall designate for the purpose, appear for and protect the interests of the city in all such proceedings in court, including the taxation of fees, compensation and expenses and proceedings before the commissioners. The fees of the commissioners and the salaries and compensation of their employees, and their necessary traveling expenses, and all other necessary expenses, in and about such proceedings to be had for acquiring title or extinguishing claims for damages to real estate, and such allowances for counsel fees as may be made by order of the court shall be paid by the comptroller of the city of New York out of the funds provided in such proceedings. Such fees and expenses shall not be paid until they have been taxed before a justice of the Supreme Court in the judicial district in which the lands or some part thereof are situated upon eight days' notice to the corporation counsel of the city of New York. Such allowances shall in no case exceed the limits prescribed by section three thousand two hundred and fifty-three of the Code of Civil Procedure." Clearly this language, taken in connection with the unrepealed provisions of section 496 of the Greater New York charter, is sufficient to justify the order of the court here under review. It may be conceded that section 5 of chapter 725 of the Laws of 1905 supersedes section 508 of the Greater New York charter, but section 5 is still to be construed in connection with the provisions of law remaining, and if any effect is to be given to the recommendation required of the commissioners in section 496, that recommendation must be deemed to come within the provision for the payment of "all other necessary expenses in and about such proceedings, and such allowances for counsel fees as may be made by * * * App. Div.] Second Department, March, 1908. order of the court." The language is certainly broad and comprehensive enough to authorize the payment of any lawful expense incurred in condemnation proceedings, and the general policy of the law, as well as the provision of section 496 of the Greater New York charter, clearly indicates the purpose of the Legislature to provide for the payment of costs and other legitimate outlays on the part of the individual who is forced into court for the protection of his rights. Any other construction would necessitate imputing to the Legislature the intention of working an injustice to the owners of property where it is desired for public purposes, and this, in the absence of clearly expressed intention, will not be done by the courts. We are of opinion that the restriction in the act of 1905 on the amount of the allowance limited the extra allowance to five per cent, and that the court did not err in this matter. It was not necessary that the case should be difficult and extraordinary; the provisions of section 496, in the matter of allowances, is without limitation, except in their discretion; the provisions of section 5 of the act of 1905 limited the court to an allowance within the limitations fixed by the Code of Civil Procedure, which is, generally speaking, five per cent. The court allowed the commissioners ten dollars per day for the amount of time which they claimed under their several affidavits. The city of New York contends that this was error; that the provisions of section 5 of chapter 725 of the Laws of 1905 govern in this matter. We are inclined to the opinion that this is true, and yet we cannot see wherein the city of New York is aggrieved. The statute provides that the commissioners "shall receive as compensation such fees and expenses as may be taxed by the court upon notice to the corporation counsel." The court has taxed the fees and expenses at ten dollars per day, and none of the commissioners feels aggrieved, so far as this record shows. Wherein is the city of New York aggrieved? True, the court might have made the compensation larger, or it might have made it smaller, but the city is not here complaining of the amount; complaining of any abuse of discretion, but it urges that the court erred because it awarded, under a mistaken idea of the controlling power of section 508 of the APP. DIV.- VOL. CXXV. 15 [Vol. 125. Second Department, March, 1908. Greater New York charter, the sum of ten dollars per day instead of some other amount. There is no reason why the court might not properly, under the act of 1905, award the compensation at the rate of ten dollars per day, and having done so, and no one interested complaining because of any abuse of the discretion, it would be idle to modify the order. The order appealed from should be affirmed. JENKS, GAYNOR, RICH and MILLER, JJ., concurred. Order affirmed, with ten dollars costs and disbursements. CELIA KISTER, Appellant, v. SAMUEL B. POLLAK and BERNARD S. DEUTSCH, Respondents. Second Department, March 6, 1908. Real property - sale - rights of parties after indefinite postponement of title day - effect of conveyance by vendor before expiration of reasonable time acts of vendee not amounting to rescission. When the time of performance of a contract to sell lands has been indefinitely postponed by mutual consent, the vendee seeking to recover a deposit because of an alleged breach by the vendor, must show that within "a reasonable time" she was ready and willing to perform and demanded performance by the vendor, or that the latter expressly refused to perform or put it out of her power to do so. So too the agents of the vendor holding the deposit in escrow can only justify its retention by showing that their principal, who, within ten days of the time originally set for passing title, sold the premises to third persons, did so at a time when the reasonable time within which the vendee might avail herself of the contract had expired, or that the vendor had put the vendee in default. A fulfillment by the vendor of the obligation aforesaid is not established by a letter addressed to the vendee's attorney and not containing a tender and demand. After such indefinite postponement of the day of passing title, the vendee by insisting that the cashing of a check for the earnest money placed in escrow was a variation of the terms of the agreement under which it was delivered and demanding a return of the money represented by the check, does not rescind the contract if she expressly avowed a desire to perform. APPEAL by the plaintiff, Celia Kister, from a judgment of the Supreme Court in favor of the defendants, entered in the office of App. Div.] Second Department, March, 1908. the clerk of the county of Kings on the 21st day of January, 1907, upon the verdict of a jury, and also from an order entered in said clerk's office on the 21st day of January, 1907, denying the plaintiff's motion for a new trial made upon the minutes. J. A. Seidman, for the appellant. Charles L. Hoffman and Henry A. Friedman, for the respondents. JENKS, J.: I think that the obligation of the defendants is to be determined by reading the contract and the agreement together. (Hine v. Bowe, 114 N. Y. 350; Knowles v. Toone, 96 id. 534.) The contract provides that if the title prove unmarketable, or if the seller fail without her fault to obtain title "the sum of One thousand dollars hereby deposited shall be returned tract shall then be null and void. * * * * * * and this con The price is Fifty-eight thousand five hundred dollars ($58,000 sic) payable as follows: One thousand dollars deposited in escrow with Pollak & Deutsch on signing of this contract, the receipt whereof is hereby acknowledged." And indorsed on the agreement is an acknowledgment of "chk. for $1,000 deposit in accordance with terms of within contract to be held in escrow by us until delivery of deed according to terms of contract." In addition to this articulation of the two writings it appears that this agreement was indorsed at the time of the delivery of the check and on the day of the execution of the contract and that the payees were the attorneys acting for the vendor. Indeed, the plaintiff, after stating the deposit, pleads the contract and avers "in and by the said contract the said Tame Shapiro agreed that the said sum of One Thousand Dollars so deposited shall be returned," etc. The complaint is not confined to action for the return of a deposit for a violation of the terms thereof or for a conversion, but after stating the preliminary facts avers that at no time was Shapiro the owner of the premises and did not before the beginning of the action obtain title thereto, "and that the said Mechanics and Traders' Realty Company without any fault on its part failed to obtain a deed," and that it had demanded the return of the check or its value and the refusal of the defendants. In other words, here is a declaration of the failure on the [Vol. 125. Second Department, March, 1908. part of the vendor to perform her contract. I think then that this check represented a deposit on this executory contract as a part payment to Shapiro if she could give a marketable title; if she could not, or if she could not without her fault obtain the title, then the $1,000 was to be returned to the realty company. And the action should be regarded as one to work a practical rescission of the contract on the ground of a failure of the vendor to perform and to recover the deposit paid thereon. The law day was June fourteenth, but the parties then assembled did not perforin. By common consent the passing of title was, put off so that the several lis pendens might be canceled. It does not appear that either on that day or thereafter, at least so far as the vendee, the realty company, was concerned, any law day was set either by agreement or by due notice. This omission makes the position of either party vulnerable, so far as this record is concerned, when either assumes to act as if the contract had been broken by the other. The plaintiff could not recover her deposit for a breach of the contract without' proof of her assignor's readiness and willingness to perform and of its demand for performance. (Hartley v. James, 50 N. Y. 38.) The vendor would be in no position to assert her right to the deposit as forfeited by the vendee's fault without proof on her part of tender and demand for performance. When the performance was deferred by common consent without day then the feature of a reasonable time after June fourteenth appeared. The vendee could not declare as for a breach until she had proved that she had conformed to the rule of Hartley v. James (supra) within a reasonable time after June fourteenth and had thus put the vendor in default, unless she showed express refusal of the vendor or that the latter had made performance impossible by her own act. On the other hand, the vendor could not apply the deposit as upon a breach of the contract by the vendee unless she had proved that she had made a tender and demand upon the vendor within such reasonable time and thus had put the vendor in default. But for a complication about to be stated, the contract must be regarded as still open, and the right to the $1,000 undetermined and dependent on the further relative acts and omissions of the parties. The complication is this: The law day originally fixed, as I have said, was June fourteenth. It |