161 N.E. 450 | NY | 1928
The action is for specific performance. Plaintiff agreed to sell and defendant agreed to buy lots in the borough of Queens known as lots 49 to 51 on Beach One Hundred and Fortieth street in block 61, according to a map of the property of the West Rockaway Land Company. The premises had a frontage of sixty feet and a depth of one hundred feet. The purchase price was $10,000, payable $750 on the signing of the contract; $2,000 by a check left in escrow with the Bank of the Manhattan Company "to be delivered at the closing of the title pursuant to the terms of the contract, if seller can deliver good and marketable title;" $2,250 in cash or certified check at the closing of the title; $3,750 by taking the premises subject to first mortgage for that amount at six per cent per annum, and to have three years to run; the balance in a purchase-money mortgage. The date of the contract was August 7, 1925. The deed was to be delivered upon receipt of the payments, etc., at the office of J.P. O'Bierne, 132 Nassau street, New York city, at 2 P.M. on September 2, 1925. The check for $2,000 was left with the defendant the Bank of the Manhattan Company, which holds it subject to the direction of the court and is not otherwise concerned with the merits of the litigation. The plaintiff was not the owner of the property at the time of making the contract but was under contract to purchase it from McCoy, the record owner. Title was to be closed concurrently on both deals. On September 2, 1925, the parties met in O'Bierne's office. McCoy had then transferred title to plaintiff. Defendant was ready on her part to close title, but plaintiff's deed lacked his *148 wife's signature. He suggested that all matters in connection with the title be passed upon and that the signature of his wife could be obtained later in the day. Defendant rejected title, refused to grant plaintiff's request for an adjournment to the evening or the following morning, and left the office without further examining the title tendered by plaintiff. Plaintiff obtained his wife's signature to the deed, tendered it to defendant at Belle Harbor, where she lived, in the evening of the same day, and demanded his money. He did not tender evidence of title nor the purchase-money mortgage. Defendant rejected the tender, suggesting that the matter be taken up with the lawyers in a business-like way. On the following day plaintiff began this action. The answer set up the defense that the title was defective in that it was subject to a right of way granted by the West Rockaway Land Company to the New York and New Jersey Telephone Company to maintain its lines in the streets laid out on the map above referred to: also that the purchase-money mortgage executed by plaintiff to his grantor McCoy was not payable in three years but was subject to certain unusual accelerative clauses; one clause, known as the Brundage clause, which gave the mortgagee the right to declare the mortgage due if any change was made in the Tax Law (Cons. Laws, ch. 60) of the State in the law for the taxation of mortgages; another clause which permits the mortgagee to declare the whole principal sum due after default for sixty days after notice and demand in the payment of any assessment for local improvements payable in annual installments, notwithstanding such installment is not due and payable at the time of such notice and demand; another clause which provides that the whole principal sum shall become due at the option of the mortgagee, for failure of the owner to comply with the requirements of any department of the State or city of New York within three months after an order making such requirement has been issued *149 by any State or city department; another clause which permits the mortgagee to declare the whole amount due if the mortgagor shall assign the rents of the mortgaged premises without first obtaining the written consent of the mortgagee to such assignment, or upon the actual or threatened demolition, or removal of any building erected or to be erected on the premises; and another clause which permits the mortgagee to declare the whole amount due if two fire insurance companies refuse to insure the property. Defendant demanded judgment for the return of $750 paid on the contract, with interest thereon and a vendee's lien therefor, with $250 counsel fee and expenses of examination of title, and for judgment directing the defendant Bank of Manhattan Company to turn over the certified check for $2,000. The trial court granted judgment of specific performance as of the closing day. It held that the defendant, by not raising objections to the title on the closing day, had waived such objections. The Appellate Division unanimously affirmed, except that it eliminated from the judgment a provision for sale and deficiency judgment and provided a time for compliance with the terms of the judgment. The trial court made a finding that the item for counsel fee and examination of title should be $195 instead of $250 as demanded. Both parties appealed to this court.
The objection to the marketability of the title is not well taken. The deed of conveyance describes the lands by the lines of the street as "beginning at a point on the easterly side of Beach 140th street" and as "running along the easterly side of Beach 140th street" and does not include the street. It was held inFossume v. Requa (
The acceleration clauses in the mortgage present another question. In Oppenheim v. McGovern (
We fail to see wherein the plaintiff has established any waiver of objections to the terms of the mortgage. Waiver has often been defined as the voluntary relinquishment of a known right. (Clark v. West,
Plaintiff is in no position to obtain equitable relief. He pleads performance and he has not performed. The court has found waiver and waiver is neither pleaded nor proved. Defendant by her answer made a good objection to the terms of the mortgage as above indicated. Plaintiff made no effort to meet the objection. He has had ample opportunity to cure the defect, if it is curable, and has failed.
The judgment of the Appellate Division should be reversed, with costs in all courts against plaintiff and in favor of defendant Belfer. Complaint dismissed and judgment granted to appellant Belfer in accordance with opinion.
CARDOZO, Ch. J., ANDREWS, LEHMAN, KELLOGG and O'BRIEN, JJ., concur; CRANE, J., not voting.
Judgment accordingly. *152