141 Misc. 764 | N.Y. Sup. Ct. | 1931
This case was tried on the counterclaim for specific performance interposed by the defendant vendor of lands in Long Beach, Long Island. The main action was one at law by the plaintiff vendee to recover its down payment, and the counterclaim was ordered severed and tried separately. Title was rejected by the vendee on the ground of the existence of an easement in the New York Telephone Company, which plaintiff claimed was not excepted in the contract. This easement was created by grant dated in 1911 from Estates of Long Beach, defendant’s predecessor in title, and provided for rather extensive privileges to the telephone company to extend wires over and under the lands in question. If this
Nor can it be said that the easement of 1911 is no more burdensome than the reservation of 1915. In the first place, it is of a very elaborate nature, and it also provides for arbitration in the event of controversies, binding on the vendor and its assigns. Should there be disputes regarding the rights of the New York Telephone Company, the plaintiff would be compelled to forego its right to resort to the courts. The property is, therefore, subject to two burdens instead of the one created by the reservation of 1915. Nor has the defendant offered to secure the release of the property from this additional burden, but he has insisted that plaintiff specifically perform. Not having tendered what he agreed, defendant is not entitled to specific performance.
Judgment for plaintiff dismissing the counterclaim. Submit findings.