16 Misc. 2d 243 | N.Y. Sup. Ct. | 1958
Plaintiff sues for $100,000 upon a joint and several bond executed by the defendants. The bond provides that plaintiff shall receive $100,000 in the event that ‘ the first advance under the building loan agreement ” “ shall not be closed because of reasons within Alexander’s Securities Corporation’s control”. The allegations of the complaint itself make it clear that the ‘ ‘ building loan agreement ’ ’ referred to in the bond is not the letter of commitment mentioned in the bond, but rather the document referred to in said letter of commitment as a “ building loan agreement The letter of commitment signed by plaintiff and Alexander’s Securities Corporation, is made part of the complaint, as “ Exhibit B ”. Its provisions clearly contemplate that the parties to the agreement embodied in the letter of commitment would enter into a ‘ ‘ building loan agreement ” some time “ before December 31,1957 ”, for the building loan agreement is to provide ‘ that construction shall commence not later than December 31, 1957 ”. The letter itself does not specify the date when the first advance under the building loan agreement is to be made or the amount to be advanced. Indeed, the letter provides that ‘ ‘ the loan proceeds shall be advanced upon the completing of the stages of construction described in and as otherwise provided by the building loan agreement”. Until the execution of the building loan agreement there cannot be a failure to close ‘ the first advance under the building loan
The motion is granted, Avith leave to serve an amended complaint within 10 days from the service of a copy of this order with notice of entry.