273 A.D. 907 | N.Y. App. Div. | 1948
In an action for specific performance of a contract for the sale of real property, judgment in favor of plaintiff-vendee affirmed, without costs. On the trial at Special Term the court decided that neither party was entitled to specific performance but directed that judgment be entered in favor of plaintiff for the return of moneys deposited under the contract, with interest from the date of payment thereof, together with the expense incurred for the examination of title, without costs. Thereafter, upon representation of plaintiff’s counsel that his client, in any event, wanted the property, the court reconsidered its decision and granted jfiaintifi a decree in specific performance, but without abatement in the purchase price. Both parties appealed from the judgment entered. While in a proper case specific performance may be decreed, with abatement in purchase price for deficiency in title as to the quantity or quality of the property sold, application of that rule is governed by equitable principles. To direct specific performance herein and to provide for an abatement of the amount required to convert this property into a legal three-family dwelling would deprive the seller of almost half of the consideration to be paid to him and would give to the purchaser a house physically and productively superior to the one she contracted to purchase. The original decision of the trial justice was a proper one. (Sokolski v. Buttenwieser, 96 App. Div. 18.) On representation of counsel for the plaintiff that his client wanted the property in any event, and in view of the fact that the seller also demanded specific performance, the trial court was prevailed upon to alter its decision to one directing specific performance without abatement. In view of her representation to the court, plaintiff cannot now be heard to complain. Lewis, P. J., Cars-well, Sneed and Wenzel, JJ., concur; Johnston, J., dissents, with the following memorandum: I dissent and vote to modify the judgment by (1) striking from the first ordering paragraph the words “the plaintiff being- denied any abatement in the purchase price”; (2) adding a provision granting plaintiff an abatement from the purchase price to the extent necessary to pay for the alterations and repairs necessary to obtain a certificate of occupancy; and (3) remitting the matter to the Special Term or to an official referee for the purpose of determining the extent of the abatement in the purchase price to be allowed to plaintiff. It is admitted by the pleading's that on August 8, 1945, plaintiff contracted to purchase and defendant to sell a three-family house for $12,000, payable $500 down, $4,500 on delivery of the deed, and the balance of $7,000 by taking subject to two mortgages. It is conceded that a certificate of occupancy for the use of these premises as a three-family house was required and had not been obtained at the time of the making of the contract. In this action for specific performance, plaintiff-purchaser asked that the cost of the alterations and repairs necessary to obtain the issuance of a certificate of occupancy be ascertained, that plaintiff be allowed an abatement in the purchase price equal to the said amount, or that defendant be directed to obtain such certificate