145 N.E. 746 | NY | 1924
The defendant Abraham Lisansky owned No. 1942 Pitkin avenue, Brooklyn, and on the 17th of March, 1923, entered into a contract with the plaintiffs to sell, and they to purchase, the premises at a stipulated price of $8,600, subject to certain mortgages. The defendant's wife, Frieda Lisansky, did not join in the contract and when it came time for closing, by delivery of the deed and payment of the purchase money, she refused to sign the deed. Abraham Lisansky was willing to give a deed without his wife's joining in it, and the plaintiffs were willing to accept such deed, provided an abatement of the purchase price were made. Lisansky refused to make any allowance and the plaintiffs thereupon brought this action for specific performance, making the wife a party defendant. The trial court, at the close of the evidence, dismissed the complaint as to her; found the facts as above stated and gave judgment in favor of the plaintiffs against the defendant Abraham Lisansky, requiring him to convey upon the receipt of the purchase price as stipulated in the contract, with a deduction therefrom of $352.98. The judgment directs Abraham Lisansky to "execute and deliver to the plaintiffs herein a full covenant warranty deed to the premises aforesaid, without the said Frieda Lisansky joining therein, and that the purchase price, as provided in the contract aforesaid, be reduced by the sum of $352.98."
The court found as a fact: "That the expectancy of survivorship of life of the defendant, Frieda Lisansky, over the life of the defendant, Abraham Lisansky, basing the same upon the age of the defendant, Abraham Lisansky, at 66 years, and of Frieda Lisansky at 64 years, is 2.569 years, and the value of such inchoate right of dower, based on the value of the property as aforesaid, *84 is $352.98, and that the purchase price should be abated by that sum;" also that the refusal of Frieda Lisansky to release her inchoate right of dower was in no way attributable to the defendant Abraham Lisansky and that there was no bad faith or collusion between them.
The judgment was entered upon a decision after trial at Special Term, from which an appeal was taken to the Appellate Division, second department, by Abraham Lisansky, where the same was unanimously affirmed and leave to appeal to this court denied. Application for leave to appeal was thereafter made to and granted by this court.
The finding as to Mrs. Lisansky's expectancy of life having been unanimously affirmed, this court must assume the same to be correct, irrespective of what mortality tables, if any, the trial court used.
The real question which the appellant argued in this court was whether the Supreme Court had the power to make the deduction from the purchase price stipulated in the contract. I have no doubt whatever that the court had such power. The inchoate right of dower of defendant's wife was an incumbrance. In an action for specific performance for the sale and purchase of real estate, if there be an incumbrance upon the property contracted to be conveyed, and the would-be purchaser is willing to take title if an allowance be made for such incumbrance, the court can fix and determine an abatement therefor. This question does not seem to be open in this court. In Sternberger v. McGovern (
Any doubt that might possibly be entertained on the subject was removed by Bostwick v. Beach (
The Bostwick case was cited by Judge CARDOZO, with apparent approval, in Catholic Foreign Mission Society of America v.Oussani (
In Maas v. Morgenthaler (
To the same effect are Farley v. Secor (
The appellant urges that Bostwick v. Beach (supra) was overruled by Roos v. Lockwood (59 Hun, 181; affd.,
It is also urged that the Bostwick case was, in effect, overruled by Palmer v. Gould (
I am of the opinion the judgment is right and should be affirmed, with costs.
HISCOCK, Ch. J., CARDOZO, POUND, CRANE, ANDREWS and LEHMAN, JJ., concur.
Judgment affirmed.