135 N.Y.S. 245 | N.Y. App. Div. | 1912
The plaintiffs are the heirs at law of one Ellen Picard, who died intestate August 27, 1898, seized of certain real estate in
“Brooklyn, N. Y., March 4, 1909.
“ Paul D. Judge, Esq., New York City:
. “ My Dear Sir.— Imre the Hawkins tax title matter. After my last conversation with you over the telephone, I had a talk with Mr. Hawkins at my earliest convenience and ascertained as to his feelings in the matter of releasing his claim against the land and giving a quit claim deed for his interest. I told him you submitted a proposition of Seventy-five Dollars as a consideration. He says that it is not at all customary for people to take less than One hundred Dollars for a quit claim interest under a tax title deed of as long standing as his, and this One hundred Dollars he wants free of any expense. I am willing to take Twenty-five Dollars as a compensation for my services, so if your client is willing to pay One hundred and twenty-five Dollars for the quit claim deed, I will produce it foryou properly executed. Have been waiting for the decision of the Appellate Division in the case of Gone against Lafier, which, if it is sustained, will place us in a very strong position to hold this title. So far as I can ascertain, the necessary steps for the creation of a good statutory tax title have been properly taken in this case. Mr. Hawkins, however, prefers to settle it satisfactorily without a prolonged litigation if possible, but on. the other hand, refuses to make any unusual concessions. Awaiting the favor of your response, I am
“ Very respectfully yours,
“JOHN A. BOWEN.”
The defendant testified that he authorized Mr. Bowen to make the offer of $125 contained in the letter of March 4, 1909,
I am of the opinion that the learned Special Term has erred. Doubtless the case might have been decided in favor of the defendant on the ground of laches, but not for want of mutuality. The letter of March 4, 1909, was an offer to sell for $125, duly subscribed by the lawfully authorized agent of the defendant. It fully complied with the requirements of the Statute of
These well-settled principles have not been changed by the Court of Appeals in the recent cases, of Wadick v. Mace (191 N. Y. 1) and Levin v. Dietz (194 id. 376), relied upon by the respondent. The features distinguishing those cases from such a case as that at bar were stated by Mr. Justice Burr in Carney v. Pendleton (139 App. Div. 152), wherein it was held that where a written valid option to sell real estate within a certain time is orally accepted within the time, the agreement becomes mutual and may be specifically enforced. Mr. Justice Burr said (p. 153): “ It is undoubtedly the general rule that to warrant a decree for specific performance the contract must be mutual in its obligations and in its remedy. (4 Pom. Eq. Jut. [3d ed.] § 1405; Palmer v. Gould, 144 N. Y. 671; Stokes v. Stokes, 148 id. 708.) But it has been generally supposed that, where the owner of property for a consideration gave to another an agreement in writing, signed by him, to the effect that within a specified time he would sell such property, describing it, at a price named, and within such time the person to whom the agreement was given determined to avail himself of the offer, and so notified the maker thereof and demanded performance, such agreement became mutual and was enforcible. (Jones v. Barnes, 105 App. Div. 281; Pettibone v. Moore, 15 Hun, 461; Boston & Maine Railroad v. Bartlett, 3 Cush. 224.) The learned counsel for the respondents claim, and the learned trial court seems to have held, that by
' It follows that the judgment must be reversed, but as the defendant may possibly he able to prove that the offer was withdrawn prior to its acceptance, or as it may appear that in the circumstances the acceptance was unreasonably delayed, the case must be retried.
Jerks, P. J., Thomas, Carr and Eich, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the final award of costs.