134 N.Y.S. 818 | N.Y. Sup. Ct. | 1911
Both plaintiff and defendant ask for the specific performance of a contract for the purchase and sale of ISTos. 50 and 52 Franklin street, in this city. Plaintiff, the vendee, alleges that there are certain alleged deficiencies in or objections to the title of the property tendered him, as follows: That a retaining wall in the rear encroaches upon the premises; that cornices, - sills-, lintels, ledge, and casings of the buildings in question project over the public street; that platforms, ■ iron steps, trap door • and freight elevator encroach upon the sidewalk, and that the vaults under the sidewalk are unlawful, and that their use may at any time- be forbidden by the city. The plaintiff asks that a deduction be made from the contract price by reason of these alleged deficiencies .or objections, and that upon payment of the •balance to defendant defendant be compelled to deliver a deed „of the premises. Defendant claims the title, accords with the contract, and that he is entitled to specific performance according to its terms. I am met at the outset of this case by the objection raised by the defendant to the effect.that the alleged cause of action set forth by plaintiff is not maintainable at- all, and defendant cites Levy v. Hill, 50 App. Div. 294, decided in the Appellate Division of this department, as authority for that proposition. In that case plaintiff, the vendee in the contract of sale, brought a similar action to the one at bar, asking -a deduction from the purchase price because the- front stoop of the building, extended into the public street a distance of fifteen feet. The court, Hr. Justice Ingraham writing the- opinion, held the action not maintainable. In Sokolski v. Buttenwieser, 96 App. Div. 22, Hr. Justice Patterson said: “ The theory upon which the -action proceeds is that specific performance of • a contract for the sale of real estate may be directed by the court in cases in which an allowance may be made by way of. deduction from the purchase price for incumbrances or other charges upon the property: There is no doubt of the general rule upon this subject, and the English courts have carried the doctrine so far as to compel specific performance of a contract where the price is fixed but where it is required to make expenditures for repairs, and have allowed the cost of the repairs in reduction of the purchase price. But the
Judgment for defendant for specific performance.