138 N.Y.S. 369 | N.Y. App. Term. | 1912
This action was brought to recover damages for breach of contract. The facts are that the defendant and the plaintiff’s assignors entered into a contract for the sale of land by the defendant to the plaintiff’s assignors, in which the defendant agreed to make a building loan of $45,000 to be advanced in instalments during the construction of two five-story buildings, in accordance with plans to be prepared, each building to contain sixteen rooms on each floor, excluding the bath rooms, and excluding the finished basement for the janitors’ apartments. It developed when plans were prepared that such houses could not be erected in compliance with the tenement house and building laws. That it would either be necessary to build retaining walls on adjoining property, or so reduce the size of the house that the required number of rooms could not be placed on each floor, or omit the quarters for the janitor in the basement. Several adjournments were had to allow the obtaining of consents to be allowed to build the retaining wall. But failing in this the parties met on February 24, 1911, at the office of the defendant’s attorney, and the attorneys representing the parties dictated to a stenographer their respective offerings and demands, from which it appears that the defendant was unwilling to make the loan of $45,000 unless the purchasers agreed to finish the basement suitably for janitors’ apartments as required by the contract, or offered to deduct from the loan the sum that would be required to so finish the basement, or he was willing to deliver the deed on receipt of the price for the lots and not make a loan. The plaintiff’s assignors offered to take the deed if 'defendant would make the loan and waive the requirement as to a finished basement. Or they were willing to take the deed of the lots without a loan and pay therefor a reasonable price for the lots without a loan, to be ascertained either by appraisal or by deducting an amount that would equal the rates that are usually charged for building loans in connection.with the sale of lots. It was conceded that the plaintiffs were ready, willing and able to pay the balance of the purchase price and that the defendant had an executed deed and a bond and mortgage for $45,000 present and that
The judgment will, therefore, be reversed and a- new trial granted, with costs to appellant to abide the event.
Lehman and Hotchkiss, JJ., concur.
Judgment reversed and new trial granted, with costs to appellant to abide event.