50 Misc. 186 | N.Y. App. Term. | 1906
Action to recover deposit on a contract for the sale of real estate and damages for nonfulfillment. The property involved consisted of a lot of land and building on Second avenue. The description in the contract indicated that the northerly wall of the building was a party-wall, but was silent as to the southerly wall. The defendant-agreed to convey the property free from all incumbrances except as stated in the contract. In fact, the southerly wall was a party-wall, existing under two agreements between former owners of the lot in question and the owners of the lot adjoining on the south. These agreements are declared to be perpetual and to constitute covenants running with the land. Both agreements provided that, in case of destruction, the wall was to be rebuilt at the joint expense of the owners of both lots. There can be no doubt that these party-wall agreements constituted an incumbrance upon the property, which prevented compliance by defendant with the terms of its contract and relieved plaintiff’s assignor from the obligation of accepting a deed., O’Neill v. Van Tassell, 137 N. Y. 297. It is urged, however, and the justice apparently considered that this particular objection was not raised at the time the parties met to conclude the sale, and that it must, therefore, be deemed to have been waived, and there is much question whether plaintiff’s assignor made any effectual tender of performance on his part. The existence of the party-wall agreements made it impossible for the defendant to fulfill its contract according to its tenor on the law day. The rule is that tender of performance on the part of the vendee is dispensed with in a case where it appears that the vendor is disabled from performance on the day fixed therefor. In such a case, tender of performance
O’Gobman' and Hewburger, JJ., concur.
Judgment reversed and new trial granted, with costs, to appellant to abide event.