Heyward v. Willmarth

84 N.Y.S. 75 | N.Y. App. Div. | 1903

Hirschberg, J.:

The judgment compels specific performance by the appellant of an agreement contained in a lease by which the privilege was given to the respondent of purchasing certain real estate at Rockville Center, L. I. The agreement is somewhat peculiar. The appellant leased to the respondent for a period of years a certain plot, of ground accurately described, with an option of purchase as follows: “ And it is mutually agreed between the above-named parties as follows : That the said lessee shall have the privilege of purchasing said premises and the land, of the said lessor adjoining' on the east at a. price not to exceed $3,000 at any time during the term of this lease.”

The demised premises and the land adjoining on the east comprised together a single, plot of ground of the uniform depth of 125 feet, acquired by the appellant by deed from her husband. The leased part was a little less than half of the lot and the circumstances left no room for doubt about the identity of the land “ adjoining on the east.” The language used clearly indicates the intention of the parties to include all the land of the lessor adjoin ing the demised premises on the east, and the extrinsic evidence showing the unity of the plot necessarily served to render the description definite and certain. Such evidence was competent. (See upon both propositions Fish v. Hubbard's Administrators, 21 Wend. 651 ; Richards v. Edick, 17 Barb. 260 ; Tallman v. Franklin, 14 N. Y. 584 ; Thayer v. Finton, 108 id. 394.)

The agreement on the part of the respondent to hire and pay rent for the demised premises is a sufficient consideration for the option of purchase as to the ad joining land as well as to the land directly covered by the lease. The inference is that the respondent would not have leased the land and have become bound for the rent with- ( out receiving the privilege of purchasing the entire tract. The ambiguity as to the purchase price is more apparent than real. The right to purchase at the full sum of $3,000 is absolute, and tl?ht amount has been tendered and is required to be paid by the terms of the judgment, less only the amount of a specific lien upon the property duly acquired by the respondent as tenant under the terms of a prior judgment in foreclosure.

The other points raised by the appellant do not seem to require discussion.

The judgment should be affirmed.

Goodrich, P. J., Bartlett, Jenks and Hooker, JJ., concurred.

Judgment affirmed, with costs.