223 A.D. 842 | N.Y. App. Div. | 1928
Judgment reversed upon the law" and the facts, with costs, and judgment directed dismissing the complaint and decreeing upon the counterclaim specific performance in favor of defendants against the plaintiffs herein. The finding that plaintiffs had given defendants a notice on May 21, 1926, that no further adjournments could be had after May 28, 1926, and that that in fact made time of the essence on May 28, 1926, is against the weight of the evidence. The evidence to that effect is not of the clear and unequivocal character that is essential to have such an effect. The request of defendants on May 28, 1926, for a further adjournment of two weeks was unreasonably refused by plaintiffs, under the circumstances, time not being of the essence under the contract and the stipulations of adjournment thereunder. Findings of fact and conclusions of law inconsistent with this decision are reversed and new findings will be made in accordance herewith. The appeal from the order denying motion to continue the trial is dismissed, in view of the foregoing disposition of the main appeal. Lazansky, P. J., Rich, Hagarty and Carswell, JJ., concur; Kapper, J., dissents from that part of the decision which directs a dismissal of the complaint, and votes for a new trial, at which it may appear more definitely that the parties were apprised of the purpose of the vendee to make public sale of the lands on July fourth. Settle order on notice.
