214 A.D. 242 | N.Y. App. Div. | 1925
This controversy arises out of a written contract created by the parties, and this appeal raises but a single question of law, namely, the proper construction of certain provisions of said agreement. The facts, in so far as necessary to present the question herein decided, are, briefly, as follows: The plaintiff’s assignor agreed in writing to purchase certain real property from the defendant for $180,000, paying $1,000 on the signing of the contract; $34,500 in cash on the delivery of the deed; and the balance on mortgage. The contract provided for taking title on June 10, 1924. The provisions of said contract upon which the complaint is based are as follows:
“It is hereby understood and agreed that time is of the essence of the contract, and if the purchaser does not take the title on the date hereinafter agreed that this contract shall then become cancelled and the deposit of $1,000 shall be retained by the seller as liquidated damages.
“It is further understood and agreed that the purchaser may obtain an extension of time within which to take title to June 30, 1924, upon further payment of $4,000 additional to be applied on account of the purchase price.”
The complaint alleges the payment of $1,000 upon the signing of the contract and the payment pursuant thereto of $4,000 for the extension of time to take title from June tenth to June thirtieth; and that at the request of the plaintiff the time to take title was further extended by the defendant from June thirtieth to July second. Thereafter the plaintiff notified the defendant that he would be unable to complete the purchase, and demanded the repayment to him of said $4,000.
It was sought, however, to avoid the application of this principle in the construction of the contract in the case at bar by holding that in providing for the retention of the $1,000 paid at the time of the signing of the contract, as liquidated damages, the parties intended that all other amounts paid on account of the purchase price might be recovered back by the vendee. That this inference does not follow is seen from the fact that the contract expressly provided that the purchaser should receive, as consideration for the payment of this further sum of $4,000, an extension of time within which to take title. By means of this payment the plaintiff has bought
It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
Clarke, P. J., Dowling and Burr, JJ., concur; Merrell, J., dissents.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.