106 Misc. 445 | N.Y. Sup. Ct. | 1919
This is an action for specific performance. Plaintiff and defendant John C. Judge entered
No fraud or mistake is set up in the answers of the defendants, nor did they at the trial claim any fraud or mistake, and the written contract being complete and not ambiguous, defendants cannot modify or contradict said written contract by parol evidence (Thomas v. Scutt, 127 N. Y. 133), and the evidence offered by defendants, under the pleading of the defendant Helen C. Judge, that plaintiff agreed to repair the bulkhead, should have been excluded. But conceding that it was properly admitted, plaintiff’s agents deny such oral agreement, and the defendants, upon whom the burden rests, have not sustained their contention as to such oral agreement, especially in view of the fact that the vendee named in the contract
The evidence shows that two of the lots in question are immediately adjacent to Jamaica bay, and that part of the rear of such lots has washed away into the bay, and that the other two lots remain in substantially the same condition as when the contract of sale was made. The washing away of part of the two lots was not caused by any fault or neglect of the plaintiff.
The general rule is that the vendee in a contract for the sale of land is entitled to any benefits or improvements happening to the land after the date of the contract, and must bear any losses by fire or otherwise which occur without the fault of the vendor. Clinton v. Hope Ins. Co., 45 N. Y. 465. In the case of a contract for the purchase and sale of real property, as in this case, the vendor is deemed in equity to be the trustee for the vendee of the title, and the vendee is the trustee of the vendor for the purchase money, and that the interest of the vendee is real estate, and in the case of her death descends to her heirs and is devisable as real estate. The interest of the parties in the property is changed by the contract of sale. Hathaway v. Payne, 34 N. Y. 92, 103; Williams v. Haddock, 145 id. 144, 150. Judge Gray, writing for the Court of Appeals in Sewall v. Underhill, 197 N. Y. 172, says: “ I am unable to find that the authority of the English rule has been shaken in this state, that a loss by fire, or other accident, not due to the fault of the vendor, must fall upon the vendee-, when the title is satisfactory and the contract is, therefore, capable of being
Defendants’ contention that the annual charge of four dollars per lot provided for in the contract was for use in maintaining the bulkhead is untenable. Indeed, the contract specifically states that “ such charge shall be payable * * * and devoted to the maintenance of the roads, paths, parks, beach, sewers and such other public purposes as shall from time to time be determined by the party of the first part. * * *."
Judgment for the plaintiff, with costs.