February 1, 1951 the defendants Anthony and Mildred Santoro, by an indenture in writing, leased to the plaintiff property at 66 Bridge Street in the City of Lambertville for a term of one year from that date. The property consists of a two-story building, the first floor of which is occupied as a bakery and the second floor of which consists of an apartment. The written lease contained the following option:
"It is agreed by the parties hereto that the said Edward E. Butterer shall have the option to purchase the entire lot, premises and the dwelling thereon, No. 66 Bridge Street, Lambertville, N.J., during the term of this lease, for a price of Ninety-two Hundred ($9,200.00) Dollars."
The complaint alleges that prior to February 1, 1952, and during the term of the lease, plaintiff attempted to exercise the option to purchase by notifying the defendants of his desire to do so and tendered the defendants the full purchase price mentioned in the option and demanded deed for the premises, but that the defendants had refused to execute and deliver such deed. This suit seeks the specific performance of the option.
The complaint discloses that on February 6, 1952 the defendant Mildred Santoro was adjudicated a voluntary bankrupt and on March 5, 1952 the defendant Topkins was appointed trustee in bankruptcy for her and that the trustee duly qualified as such and is now serving in that office.
Defendant Topkins as trustee has filed an answer in which he joins in the demand of the plaintiff for judgment and offers to join in the conveyance to the plaintiff.
It appears by certain affidavits filed that Mr. and Mrs. Santoro hold title to the premises as tenants by the entirety and that there are certain judgments of record against her.
The defendants Anthony and Mildred Santoro have not answered, but make motions as follows, viz.:
(1) Motion by the defendants to dismiss the suit because the complaint was prematurely filed.
(2) Motion to dismiss Topkins, trustee in bankruptcy, as a party defendant on the ground that he has no interest in the subject matter of the suit and is not a proper party.
As to the first motion , defendants Santoro filed an affidavit stating in substance that on January 29 they entered into an agreement with the plaintiff which provided that the option feature of the lease should be extended for an additional period of four months and that title should be delivered to the plaintiff on or before June 1, 1952. Copy of the so-called agreement extending the option is annexed to the affidavit and discloses that it is a unilateral agreement signed by the Santoros but not by the plaintiff, and the plaintiff denies having made such an agreement. The defendants Santoro do not deny that the plaintiff attempted to exercise his option and tendered performance on his part prior to February 1, 1952.
Under those circumstances, I conclude that this suit for specific performance, the complaint in which was filed May 6, 1952, was not prematurely filed and the motion to dismiss the ...