115 N.Y.S. 698 | N.Y. App. Div. | 1909
This action was commenced to reform a contract for the sale of real property and for a specific performance of the contract when reformed. The complaint, which was verified by one of the plaintiff’s attorneys, set out a contract by which the plaintiff agreed to sell to the defendant an undivided one-quarter interest in remainder in a piece of real property situated in the city of Sew York which was to be subject to the life estate of a life tenant and two mortgages which were liens upon the property. The contract was made on the 17th of. October, 1903, the price to be $16,000 and the deed to be delivered on January 25, 1904. The complaint then alleged that the defendant failed to pay the amount agreed to be paid and failed and refused to take title to the said property pursuant to the agreement, and asking that the said agreement be reformed in certain particulars- and for a specific performance of the contract by the defendant. The defendant interposed an answer alleging that the plaintiff was unable to perform the contract as executed in consequence of certain restrictive covenants upon the property; that the defendant was ready, able and willing to carry out and perform the contract on his part and had duly performed each and every obligation by -him to be performed; that the defendant had not been repaid, and had also expended $500 incurred in examining the title; and asking judgment that the contract be canceled and that the defendant recover from the plaintiff said sum of $2,250 and have a lien upon plaintiff’s interest in the property. To this there was a reply interposed, also verified by one of the • plaintiff’s attorneys.
The case came on for trial at which no testimony was offered for the plaintiff. The counsel for the plaintiff informed the court that the action had been brought without his authority and he withdrew the claim for affirmative relief, and the only question presented, therefore, was as to the counterclaim of the defendant. The defendant then proved that' the property was subject to certain incumbrances and the payments made under the contract. On behalf of the plaintiff in reply it was proved that proceédings had been commenced to have the defendant adjudicated a bankrupt; that he had settled with all his creditors except the plaintiff who had presented a claim for the damages sustained under this contract;;
The plaintiff’s interest in this property is subject to a life estate in one Julia Ann H. Knapp with a devise over to her children, or upon her death without issue then one-quarter interest to the plaintiff. It seems to be conceded that Julia Ann H. Knapp is now upwards of seventy years of age and without children. There are various covenants in relation to this property which would seem to be valid objections to the title. In the decision which was filed it was stated that the plaintiff at the opening of the trial announced that the action was commenced without plaintiff’s knowledge; that
I am unable to concur in the views taken of this contract by the trial judge. The plaintiff agreed to sell all the undivided one-quarter interest in remainder in the specified premises for the Sum of $16,000, and agreed to deliver a deed of the said undivided one-quarter interest in said premises free and clear of all incumbrances except the life estate of the life tenant and two mortgages aggregating $6,000. This was not a contract to sell the right, title and
This, I think, left the question as to whether the plaintiff could complete his contract, 'and whether the plaintiff was liable for the
It follows that the judgment must be reversed, and a new trial ordered, with, costs to the appellant to abide the event.
McLaughlin, Clarke, Houghton and Scott, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.