65 N.Y.S. 116 | N.Y. App. Div. | 1900
The action was brought to recover the sum of $5,000 alleged to-be due for rent of the premises leased to the defendant. The lease, which is annexed to. and made a part of the complaint, provides that the defendant shall' pay certain rent at the times stated, and further provides that if at any time before the expiration of the lease “ the party of the second part, having first satisfied itself that the party of the first part can convey to it a good and valid title in fee to the. said premises free and clear of all encumbrances, may purchase the said premises for the sum of seventy thousand dollars ($70,000), to be paid” as therein providedthat “on March 31, 1899, at 12 o’clock noon, at the office of the party of the first part, in New York city,- the "said purchase price shall be- paid as aforesaid, and a deed which shall vest the title to the said premises in fee simple in the party of the second part shall be executed and delivered to it, conveying the said premises to the party of the second part free of all encumbrances except taxes which may become a lien thereon subsequent to January 1, 1899.” The lease further provides that “ in case the party of the second part should not exercise the right to purchase the said premises as aforesaid, it shall, upon the expiration of this lease, on December 31, 1898, pay to the party of the first part as additional rental the sum of five thousand . dollars; * * * If, however, the party of the first part should be unable
The complaint alleges the making and execution of this lease; that .on or about August 2, 1898, the defendant; without making any objection to the title to the said property, “ and without examining it, gave notice in writing to the said Hepburn that it did not intend to exercise the right to purchase the said premises, stating, as its only reason, that it had decided to rémove to Troy, New York, and down to the 23d day of January, .1899, it never did exercise the said right to purchase, and has not yet exercised, and has declared that it intends never to exercise the same.” The answer admits the making of the lease by the defendant; that it has not exercised the right to purchase the premises described in the said written instrument, and has declared that it did not intend to exercise the same, and that on the' 31st day of December, 1898, and afterwards the plaintiff offered to convey the said premises to the defendant, and that- the defendant declined to exercise its option to purchase the same; but the defendant denies that the plaintiff offered to convey, or was ready or able to convey, a good and merchantable title in fee simple to the said premises on or at any time prior to the 31st day of December, 1898; and as a separate defense it alleges upon information and belief that neither on the 31st day of December, 1898, nor at any time prior thereto, was the plaintiff able'to convey to the defendant a good and sufficient title in fee simple, free and clear of all incumbrances; that the plaintiff’s title to the said premises was imperfect, defective and incumbered during all the times in said complaint mentioned, down to and including the 31st day of December, 1898, and that, on that account, the defendant Was' unable to and did not exercise the option to purchase the said property, and on said 31st day of December, 1898, gave due notice accordingly to the plaintiff. To this separate defense the plaintiff demurred and we think the demurrer was well taken.
The rent that was .reserved by this lease was, as therein stated,
We think, therefore, that the judgment appealed from should be reversed and the demurrer sustained, with costs in this court and in
Patterson, McLaughlin and Hatch, JJ., concurred.
Judgment reversed and demurrer sustained, with costs in this court and in the court below, with leave to defendant to amend answer in twenty days on payment of such costs.