256 A.D. 891 | N.Y. App. Div. | 1939
Judgments affirmed, with costs, on the authority of Born v. Schrenkeisen (110 N. Y. 55); Rollton Syndicate, Inc., v. Widlitz (219 App. Div. 537); Motris v. Green (62 id. 460); Hard v. Seeley (47 Barb. 428), and Western Union Telegraph Co. v. Brown (253 U. S. 101). All concur, except Crosby, J., who dissents and votes for reversal and for dismissal of the complaint in the following memorandum: No fault is found with the rule that “ when a written instrument provides that it shall become void in case of default by one party to perform some covenant therein contained, it becomes void only upon the claim and at the option of the party for whose benefit the covenant was inserted.” (Born v. Schrenkeisen, 110 N. Y. 55.) But when the contract in this case is read as a whole, and not as if it were two separate and independent contracts, it clearly provides, in effect, that defendants had the option either (1) to complete the purchase of the land and thereby secure settlement of a pending lawsuit, or (2) to cancel the contract, by not completing the purchase, on pain of losing the $200 cash payment already made and suffering the lawsuit to take its course. (One judgment is for plaintiffs in an action to compel specific performance of a contract to purchase certain property. The other judgment is for costs.) Present — Sears, P. J., Crosby, Lewis, Cunningham and Taylor, JJ.