54 Misc. 2d 936 | N.Y. Sup. Ct. | 1967
This action was instituted by plaintiffs to recover a down payment of $3,450 made by them under a contract to purchase from the defendant corporation a parcel of property with a dwelling house thereon located at North Bellmore, in the Town of Hempstead, Nassau County, New York. Plaintiffs assert that the contract is void and that they are entitled to a return of their down payment because the defendant failed to obtain a variance from the zoning ordinance of the Town of Hempstead as provided in the contract. The provision in question, designated as paragraph 22 in the contract of sale, reads as follows: “The parties hereto do
Plaintiffs contend that the decision of the board does not grant a ‘1 variance ’ ’ as required by paragraph 22 of the contract, but is merely a temporary permit for maintenance of a second kitchen only as long as the plaintiffs themselves continue to be the owners of the property.
The term “mother-daughter dwelling” is not defined in the contract of sale. The evidence of the plaintiffs is to the effect that there was no discussion whatever, either before or
In addition to the foregoing, plaintiffs are also entitled to ■prevail herein because there was no “meeting of the minds ” .as to an essential element of their transaction. The court ;finds that at the time of the signing of the contract, the parties
“In an agreement of sale the essentials are the same as in other contracts. If the seller understands he is selling.one thing and the buyer that he is buying another thing, there can be no contract of sale. (2 Williston on Sales [2d ed.], §§ 5, 653, 654; Raffles v. Wichelhaus, 2 Hurl. & Colt. 906; Hecht v. Batcheller, 147 Mass. 335.)
“In Hecht v. Batcheller (supra, p. 338) it was stated: ‘ It is a general rule, that, when parties assume to contract, and there is a mistake as to the existence or identity of the subject matter, there is no contract, because of the want of the mutual assent necessary to create one ’ ”.
In its consideration of this case the court has not overlooked the fact that plaintiff Olgerts I. Balodis stated at the Board of Appeals hearing that he would remove the second kitchen if his parents should move out of the house; and that during the hearing the defendant’s counsel, with said plaintiff present, stated: “In the event the house would be sold, this second kitchen will be removed and must be removed ”. It is not necessary to discuss the circumstances under which these state
Accordingly, the court finds that plaintiffs are entitled to recover their down payment of $3,450 with interest thereon from June 15, 1966. This constitutes the decision of the court under CPLR 4213.