103 N.Y.S. 612 | N.Y. App. Div. | 1907
This action was for the specific performance of a contract by which the defendant Todd agreed to assign and convey to the plaintiff certain leasehold property in the city of Mew York. The agreement was dated July 16,1904, and was between the defendant Louis L. Todd, party of the first part, and Tracy W. Pratt (plaintiff), party óf the second part. This agreement recited that the executors of Charlotte M. Goodridge, and others, by an.instrument dated May 1, 1902, bad leased to Todd certain lots of land on the northwest corner of Thirty-sixth street and Broadway in the city of Mew York, the term of which lease extended .up to the 1st day of May, 1907, and which lease contained certain covenants as to renewals, the said lease being in effect a modification and extension of certain other leases and agreements, the first of which- took effect on or about' May 1, 1886, and also two- other leases of adjoining property ; it being intended that all of the rights, property, powers, privileges, interests and estate of the party of the first part, whether as lessee, assignee gr otherwise, under or in. any of the aforesaid leasee or
.Gn -the 29.th day of September, 1904, an agreement ’was executed between the Goodridge trustees and the beneficiaries under the will
Thv.'s tlie final condition of the contract between the plaintiff and the defendant Todd, and between the plaintiff and the trustees and those interested in the estate of Charlotte M. Goodridge, both stood adjourned to the 3d of November, 1904. At that time it is conceded that the plaintiff was not ready to perform either of these contracts. . No proceedings had been commenced to validate the lease, nor had the trustees received any express authority to execute a lease of the premises; and the plaintiff claimed, and was sustained by the title company to whom the question as to the validity of the lease had been-submitted, that’the trustees of the estate of Good-ridge had no authority to execute a lease which, including renewals, would extend beyond the termination of the trust. It is evident that the plaintiff refused to complete his contract until he could get a lease that the title company would accept, and that the title company would not accept a lease for the full term, including the renewal which the Goodridge trustees and those interested in the estate could execute. At any rate, the plaintiff never did offer to complete his contract, and never was in a position to complete it. After November 3, 1904, nothing seems to have been done in relation to the carrying out of the contract, and the time within which it was to be performed not having been extended by any agreement, the trustees of Mrs. Goodridge and those interested in her estate
It seems to me that this question is whether or not the plaintiff was, under the contract with Todd and the trustees and those interested in the Goodri'dge estate, hound to accept from them the transfer which they'were able and ready, to give, including the new -lease ; so that on the execution of such transfers and conveyances and the new lease by the trustees and those interested in the Goodridge estate, Todd and the Goodridge estate had complied with their contract. I think such a transfer and new lease were a compliance with the contract, and that the plaintiff was then in default. This being the situation, it was within the right- of the trustees and Todd to insist that the plaintiff perform his contract by a day named, giving him a reasonable time to perform, and-upon his failure to perform declare the contract at an end. The notice that was given to the plaintiff to perform on or before the twenty-second day of November formally took this position : that- the trustees and Todd were ready and willing to perform the contracts,- and they required the plaintiff to perform on his part. He made no- objection to the fact that the time was not sufficient; he requested no further time, but took his stand upon the position that Todd and the estate of Goodridge were not able to perform, and that he would not accept the transfers and the new lease as a performance of the contract. Under such circumstances it seems to me that there was no ground upon which the plaintiff could maintain an action for specific performance. There never was-any question as to Todd’s title to, the lease, or as to his power to give a good transfer of the interest in the lease that he had ; and that was all lie undertook to do.
For this reason I think the judgment appealed from should be affirmed, with costs.
Patterson, P. J.,. Laughlin, LIougi-iton arid Lambert, JJ., concurred.
.Judgment affirmed, with costs.