49 A.D.2d 134 | N.Y. App. Div. | 1975
The contract in question was for the purchase
On appeal, plaintiffs contend that the contract should be reformed to abate the purchase price to reflect the actual acreage contained in the parcel, and that it be specifically enforced as reformed. In the alternative, specific performance of the contract as written, is sought by plaintiffs.
Since there is proof in the record to show that the negotiations between the parties were for the purchase of land in bulk based on a gross rather than an acreage price, credit may not be allowed for any deficiency in acreage so as to effect an abatement of the contract price. (Hunt v Wall, 211 App Div 856, affd 240 NY 696; Ireland v Baylis, 188 App Div 981; Bishop v Decker, 166 App Div 890, affd 221 NY 557.) Nor are plaintiffs entitled to specific performance of the agreement at the full purchase price of $35,000 under the circumstances here present. The complaint in the action demanded reformation and specific performance of the contract, as reformed. Ever since the execution of the agreement plaintiffs have sought delivery of a deed to the property in question upon their payment of only a portion of the agreed purchase price. Only at the conclusion of the trial of the action did the plaintiffs assert that if it is determined that they are not
Plaintiffs, having invoked the equitable powers of the court, may not now be heard to question the right to equitable relief, in the form of order of rescission of the contract, granted to defendants. (Matter of Feuer Transp. [Local Union No. 445], 295 NY 87, 91.) The trial court properly granted equitable relief against an executory contract upon the ground of mistake as to the quantity of land to be conveyed, which essentially and materially affects the agreement and does not reflect a meeting of the minds. (Belknap v Sealey, 14 NY 143; CPLR 3017, subd [a].)
The judgment should be affirmed, with costs.
Sweeney, J. P., Kane, Main and Larkin, JJ., concur.
Judgment affirmed, with costs.