GAYNOR, J.:
The contract between the plaintiffs and the defendant was that the plaintiffs should pay the defendant $320 for four lots of land by paying $32 down and $20 a month thereafter. It was made June 22d 1901. It contained a clause that on default in any payment the seller might 30 days thereafter elect without notice that all the payments become forfeited to her and belong to her as liquidated damages, and that thereupon the contract should terminate.
The plaintiffs paid $209 in all. The last payment was of $10 in September, 1903. The payments were not according to contract, but irregular as to time and amounts from the beginning, the purchasers being all the time in arrears owing to illness and lack of work. The seller always accepted the payments, however, and thereby so far waived the forfeiture clause that she could not revive it, if at all, except by notice to the purchasers that if they did not pay the balance due within a reasonable time specified such forfeiture would be then exercised ( Harris v. Troup, 8 Paige, 423; Clythe v. La Fontain, 51 Barb. 186; Murray v. Harbor Suburban B. S. Assn., 91 App. Div. 397; Cook v. Wardens, etc. 67 N.Y. 594; Day v. Hunt, 112 id. 191; Toplitz v. Bauer, 161 id. 333).
The notice which the seller claims to have given — for it is not found by the trial court and is disputed that she gave any, the court's decision being based on the purchasers' defaults alone — was not of a forfeiture at all. To make the forfeiture she had to put herself in a position of strict right. The trial court should therefore have given the plaintiffs relief. The defendant claimed that she had sold the property to another for $950 after the plaintiffs' last payment, and therefore could not specifically perform. Even so, the judgment should have been for some appropriate equitable relief in lieu, as that the defendant convey to the plaintiffs on payment of the balance due on the contract or else refund to them the amount they had paid; or that she account to them for the second sale, at all events if it were made in bad faith toward the plaintiffs, and the plaintiffs' defaults are excusable.
The judgment should be reversed and a new trial granted.
HIRSCHBERG, P.J., JENKS, HOOKER and MILLER, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the final award of costs.