126 N.Y.S. 6 | N.Y. App. Div. | 1910
This is an action by a vendee of two adjoining parcels of real estate in the borough of the Bronx, Hew York, to impress upon the land a lien for $1,900, being the amount of the down payment, $1,500, and the reasonable cost of examining the title, and for a sale of the premises to satisfy the lien and for a deficiency judgment if need be; and in the event that plaintiff should be unable
The title tendered was rejected by plaintiff upon the grounds that it was not marketable and was not otherwise in accordance with the contract in that the incumbrances were materially different from those subject to which he agreed to take title and that there were also other incumbrances. The defendant did not take title to ■ the premises himself and never tendered or was in a position to tendér. better title than that tendered at the time the parties met to close the contract; and maintaining that the. title was both marketable and in accordance with the contract, he set up a counterclaim herein for specific performance and therein alleged that he was still ready, able and willing to perform.
The contract, after containing a recital that it was understood that the defendant was not the Owner of the premises and that he merely had a contract for the purchase thereof, provides as follows': “ and if the title to either of the parcels above described should prove unmárketable the deposit herein made shall be returned to the said Elterman and this contract shall'be canceled and annulled without any further damages by either party as against the other, provided notice of the unmarketability of the title to either of-the said parcels is given by the said Elterman to the said Hyman or his attorneys, not later than December 27th, 1904.
“ Should the title to either of said parcels prove unmarketable,■ the same shall not be ground for rejecting the title to the other parcel, but the purchase price, as well as the amounts to be paid on closing and the amount of the mortgage, shall be adjusted proportionately.”
On the 27.th day of December, 1904, and within the time pro
“ Hew York, January 3rd, 1904.*
“ Mr. Elterman, Hew York, H. Y.:
“ Dear Sir.—We received a letter from your attorneys, Messrs. Cohen Bros., informing us that the lots on Stebbins Ave. are unmarketable, but find upon investigation that they are marketable, and wish to inform you that title is to be taken on the 9th of this month. Kindly let me know whether you will be ready on that day, and oblige, ’' Yours truly,
“ JACOB HYMAH.”
Hothing■ further transpired between the parties until January 9, 1905, the day on which the contract was to be closed^ when about an hour before the time set for closing plaintiff’s attorneys received a letter from the attorneys for defendant referring to the contract and to the hour and place therein prescribed for closing it, and requesting that plaintiff and his attorneys meet defendant and them
One of the parcels of' land embraced in the contract and therein designated the first parcel, was described as having a frontage of 150 feet on Stebbins- avenue and extending in depth the same width easterly therefrom 100 feet, and the other parcel bounded the first one on the north and was of the same depth but had a frontage of only 50 feet on Stebbins avenue. The consideration to be paid was. $31,750, of which $1,500 was required to be and was paid at the time the contract was executed. It was provided in the contract that $10,000 of the purchase price was to be paid “ by taking the first parcel above described subject to a mortgage in the said amount due on' or about Dec. 17, 1906, or on thirty days’ notice after the first year said mortgage bearing interest at the rate of 5% per annum, containing the usual clauses, also a mortgage tax clause,” and that $3,000 of the purchase price should- be paid “by taking said premises subject to a mortgage in the said sum on the first parcel above described due on or before December 17th, 1906, bearing interest' at the rate of 5%¡ and containing the same clauses as the first mortage above described.” There was no mortgage on record for $10,000 on either parcel. There was one mort- ■ •gage on one-half of the first jpmoel for $5,000 and another on the other half for like amount. These mortgages were executed after the contract between the plaintiff and defendant was made and on the 29th day of December, 1904, and instead of being due-in December, 1906, as provided in the contract, they were due December 27,1907, or on sixty days’ instead of thirty days’ notice' after the first, year. They also contained clauses as follows:
The learned trial justice based his dismissal of the complaint upon the failure and refusal on the part of the plaintiff to consent to post: poning the closing of the contract to enable the defendant to remove the objections with respect to said mortgage. We are of opinion that this was error and it cannot be sustained, not only because there is no evidence of such refusal, but for other reasons as well. The Court of Appeals on a former appeal herein held that the vendee under an executory contract for the purchase óf land has a lien on the premises for the amount paid pursuant to the contract which he may enforce in equity if he was ready to perform and the vendor was unable to perform. (Elterman v. Hyman, 192 N. Y. 113.)
The material facts as to whether, this action could be maintained in equity were the same in the record on the former appeal as in the record now before the court, and it must, therefore, be assumed that notwithstanding the fact that the defendant did not have title at the time the contract was made and at the time the action was commenced, the plaintiff had a lien upon the interest of the defendant in the premises under his contract which was enforcible in equity. The Court of Appeals on the former appeal also decided that the three clauses in the mortgages to which objection was made were unusual as a matter of law. It is claimed that the land was vacant and produced no income and that, therefore, two of these clauses could not be prejudicial to the purchaser. Evidence that the land was vacant was in the former record. Moreover, the land might be built upon and rented before the mortgages were to fall due. Therefore, the plaintiff was not obliged to take the title. If the defendant offered to endeavor to remove the objections and requested time therefor, and this was refused, and the defendant afterwards
It is further contended on behalf of the respondent that the objections only affect one of the parcels and that it was the duty of the plaintiff under the contract to take title to tlie other and, therefore, he is debarred from.recovering the down payment and expenses. The answer to this contention is that the objection that the clauses in the mortgages which have been herein set out and discussed do not render the title unmarketable, but establish a breach of the contract with respect to the mortgages, subject to which title was to be taken. It would seem, therefore, that the plaintiff was entitled to maintain the action as one in equity, although equitable relief cannot now be awarded, for the reason that the defendant lias, not taken title and has doubtless lost all his rights under his contract. Under the well-settled rule equity may retain jurisdiction and award a money judgment.
.1 am also of opinion that the plaintiff would be entitled to recover even though the action be regarded as one at law. The action was regularly on the Special Term calendar and no objection was made to its being tried at Special Term. The defendant did not plead in his answer that the plaintiff had an adequate remedy at law, nor was the objection taken at the trial that his remedy was at law; moreover, there was-no request, or even suggestion, that the issues, be sent to a Trial Term .for-a jury trial. Of course, regarded as a suit in equity, the filing of the summons, complaint and Us pendens before negotiations were finally broken off, and while the parties were waiting for the wife of- the defendant-to appear and execute the deed to be tendered to the plaintiff, would not affect the right of
It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
Ingraham, P. J., Clarke, Scott and Miller, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.
Evidently intended for 1905,—[Rep.