16 A.D.2d 867 | N.Y. App. Div. | 1962
Judgment unanimously modified in accordance with the memorandum and as modified affirmed, without costs of this appeal to either party. Certain findings of fact and conclusions of law disapproved and reversed and new findings and conclusions made. Memorandum: Defendant and plaintiff’s predecessor in title entered into an agreement in writing by the terms of which defendant agreed to lease certain real estate for a period of two years and thereupon to purchase the property for $27,000. There is no validity to the contention of defendant that the agreement is not enforcible because it was executed by an agent of the vendor, who was not authorized in writing. Defendant in this action is the person sought “to be charged” and the fact that the agreement may not have been enforcible against the vendor is immaterial (Real Property Law, § 259; N. Y. Legis. Doc., 1944, No. 65 [D]). The Official Referee correctly found that there was an anticipatory repudiation of the contract by defendant before the time set for the acceptance of the deed. (Cf. 5 Corbin, Contracts, § 1141.) There was error, however, in the implementation of the relief to which plaintiff was entitled. It was found that defendant was liable for rent through the month of November, 1959, and at the same time the court decreed specific performance of the agreement to purchase as of September 30, 1958. It is obvious that plaintiff is not entitled to collect rent for these 13 months and at the same time be compelled to pay interest on the purchase price for a