121 N.Y.S. 328 | N.Y. App. Term. | 1910
Plaintiff is a real estate broker. On Tuesday, December 1, 1908, he obtained authority to negotiate
Plaintiff’s theory is that he produced a buyer ready and able to take the property, and that 'the deal fell through on account of the existence of encumbrances of which defendant should have informed him beforehand. On the first trial the complaint was dismissed, but the judgment was reversed by this court upon plaintiff’s appeal and a new trial ordered. On the second trial plaintiff was successful. The opinion in the former appeal shows a different state of facts from that appearing in this record. Defendant did not lure plaintiff to search for buyers, but permitted him to do, so at his own request. Defendant concealed nothing. Plaintiff admits that he did not inquire about the existence of encumbrances. Defendant did not sell the property pending an adjournment, but waited until what the buyer claimed to be the adjourned hour, although he did not admit any obligation to do so.
i There were two fatal obstacles to plaintiff’s success in this action.
i Iu the first place, there is no duty on the part of a real estate owner to inform a broker as to whether there are covenants as to nuisances in his chain of title, unless he is asked about it. It is the duty of the broker to ask, if he wants to know. A large part of the land in the borough of Manhattan is subject to such covenants in some form, covenants of ancient standing, of whose existence the owner is often unaware. It does not occur to the owner, unless he is an experienced trader, to inquire as to the existence of such covenants or to mention them if he knows about them. The ' employment of a broker is nearly always, as in this instance, at the broker’s own suggestion. The broker is an expert in such matters, familiar with these covenants and. their frequency. The covenants are not usually of any present importance. They are generally rather a benefit than an injury to the property. To hold that silence about them on the owner’s part is equivalent to fraudulent concealment of
In the second place, the Kempners acted unreasonably in delaying the contract on account of this covenant, for it was no obstacle to the building of such an apartment-house as they contemplated. The covenant which they objected to prohibited the erection of “ any slaughter house, coal yard or cow pen, tenement house, tallow chandlery,” etc., and was closely similar to one which, some years earlier, had been before the courts in Kitching v. Brown, 180 N. Y. 414, and had been held not applicable to apartment-houses.
Judgment should, therefore, be reversed. As the testimony is in accord upon every relevant question of fact, judgment should be entered in favor of the defendant without further litigation.
Seabury and Guy, JJ., concur.
Judgment reversed, with costs, and complaint dismissed.