Hoch v. Braxmar

95 N.Y.S. 647 | N.Y. App. Div. | 1905

Hooker, J.:

The parties entered into an agreement, the defendant to sell and the plaintiff to purchase certain real estate against which there was outstanding a first mortgage of $3,000. The defendant agreed to convey the absolute fee, subject, however, to that mortgage. When the time came to close the sale, the plaintiff refused to perform because of a certain restriction upon building which was found to exist in the conveyances to the defendant. At the solicitation of the defendant, however, he agreed to take title and pay the purchase price, oil- the defendant’s promise to obtain an extension in the time of payment of the mortgage. That promise was reduced to writing in these words:

“ As part of the consideration for closing title to • premises 847 Grates Ave',, Bor. of Bklyn., I agree to obtain for Simon Hocli an extension of the first mortgage of $3,000 on- said premises for three years and to forward such extension to sd Hoch.

“ Dated March 1st, 1904. C. G. BRAXMAR.”

The complaint ig; for damages.because of the defendant’s breach of the contract.- Proof .of the facts just recited was offered and it was established that because of defendant’s failure to ' obtain the extension, the plaintiff was compelled to and did obtain another mortgage with whose proceeds he paid off and discharged the mortgage of $3,000' mentioned in the agreement, and that the reasonable cost and expensé thereof was $53.87. At the Conclusion of this proof the complaint was dismissed and the plaintiff appeals. ■

Tlie-judgment must be reversed. The agreement to obtain an extension of the $3,000 mortgage was valid and supported by abundant consideration. The measure of damages the plaintiff contended for was proper. It must have been within the reasonable contemplation of the parties at the time of making -the contract that if the defendant failed to procure the extension of the mortgage, and the plaintiff could not then pay it without obtaining another loan in its place, he would be put to the expense incident tb obtaining the money on another mortgage. The expense of searching and passing upon the title," of drawing the bond and f f mortgage and satisfaction and of recording instruments incident' to the transaction flowed directly from and' were made necessary by the breach, of defendant’s contract.

The judgment must be reversed and a new trial ordered, costs' to abide the event.

Hirschberg, P. J., Jenks, Rich and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide, the event.