In this аction for specific performance of a contract to convey real property plaintiffs-purchasers appeal from a judgment which dismissed plaintiffs’ complaint, granted defendants-vendors’ counterclaim for spеcific performance, found that the vendors had submitted marketable title on the agreed upon closing date, and found that the parties did not intend that a portion of the property previously appropriated by the State be subjеct to the purchase contract. The plaintiffs also seek an award of damages in their complaint. This is the second time this matter has been before us on appeal.
Plaintiffs-purchasers originally brought this action for specific рerformance to convey real property, commonly known as 29 Hoyt Place, Rochester, New York, when defendants-yendors refused to correct claimed defects in their title which plaintiffs alleged had fatally affected the marketability of the property. These defects arose, plaintiffs assert, from the prior appropriation by the State of portions of defendants’ property and a subsequent conveyance of a portion of the parcel to one Tubiolo and wife.
Initially, plaintiffs named the respondents, their mortgagee, the successors in title to the Tubiolos, the real estate broker in possession of the deposit, and the State of New York as parties defendant. Defеndants Lanze answered demanding that the complaint be dismissed, and by way of counterclaim sought
On appeal to this court we reversed and stated that "a trial is required following which a determination of the description of the property which defendants are bound by the contract to convey may be made” (
Pending the first appeal plaintiffs’ action against the State of New York was discontinued in return for a declaration by the State "that it did not take in its appropriations of 1959 and 1962 * * * the right of access * * * for ingress and egress to, and for maintenance of sewer connections in, Hoyt Place, as relocated, and that if, in the future, there is any deprivation by the declarer of such access for ingress and egress, or for maintenance of existing sewer connections, the (State) would be required to make a future taking”. Subsequent to the first appeal, plaintiffs’ action against the Tubiolos’ successors in title was discontinued in return for а correction deed, quitclaim in form. The defendant real estate broker did not take an active part in the trial but rather assumed the position of a disinterested stakeholder and agreed to abide by the eventual result. Defendants’ mortgagee also assumed an inactive posture at the trial and thus the plaintiffs and the
The trial court found, inter alla, that defendants’ title was marketable at the date set for the original closing and that the parties did not intend that the property previously appropriated by the State was a part of the subject property. Consequently, it dismissed plaintiffs’ complaint and granted judgment to defendants on their counterclaim for specific performance. We do not agree with this result.
It is the established law of New York that a purchaser is entitled to marketable title unless the parties provide otherwise in the contract (Laba v Carey,
Since we held on the first appeal that the record title was defective enough to require an evidentiary hearing on purchasers Regans’ claims, the trial court erred in determining that the dеfendants Lanzes’ title was marketable at the original date of closing. However, the trial court’s factual finding that the parties did not intend that the appropriated parcels be conveyed seems to be a fair interpretation оf the evidence and it is not subject to attack on this appeal (see, generally, Collins v Wilson,
Both sellers and purchasers were desirous of consummating the sale and the transaction was closed on November 30, 1973, pursuant to a warranty deed which satisfied both parties and
Plaintiffs list five items of direct and consequential loss due to defendants Lanzes’ failure to convey marketable title on the original date of closing, for which plaintiffs contend there is support in the record. The first of these is for increased costs of construction of planned improvements. This item of increased costs of improvements does not have that ring of clear predictability of consequence for which an unsuccessful good faith litigant should ordinarily bе held responsible (see, generally, Stevens v Central Nat. Bank,
The second item is for increased mortgage interest costs of ½% over 25 years. This additional cost is a predictable consequence arising out of delay in conveying title. However, the principal on which these increased mortgage interest costs should be applied is not the $39,000 cited in plaintiffs’ brief, for that amount includes money borrowed for anticipated improvements to the property. The increased mortgage costs should be applied only to the $29,750 portion of the mortgage which represents the remaining purchase price due defendants at the eventual closing. Plaintiffs, therefore, are entitled to $3,718.75 for this increased mortgage interest cost.
The third item is for reаsonable monthly rental. Defendant John Lanze testified on cross-examination that $300 per month "would be reasonable * * * . It is worth more in fact” as rent for the premises. A vendee entitled to specific performance may elect to take the rents and profits retained by the vendor as of the original closing date but then he must credit the vendor with interest he would have been required to pay on the purchase money for the period between the original closing date and thе actual date of closing (Matter of 50-05 43rd Ave.,
Plaintiffs further claim $477 for additional moving costs due to the delay. This is amply proved and is clearly a predictable consequence of defendants-vendors’ failure to perform and should be granted plaintiffs.
The last item of claim by plaintiffs is for legal fees of $4,900 in prosecuting this case. However, such legal fees "are merely incidents of litigation and аre normally not recoverable absent contractual obligation or specific statutory authority [citations omitted]” (Klein v Sharp,
Defendants should, of course, receive credit for various expenses which they had during the 22-month period which would have normally been borne by plaintiffs if the conveyanсe had taken place on the original closing date. Such items as real property taxes, insurance premiums, heating and lighting expenses and perhaps others would have been the plaintiffs’ obligations if they had been in possession. Regrettably, the proof as to most of these items was not presented upon the trial. The parties are bound by the record and defendants can only recover such costs as they have proved. The only proof submitted by defendants relаted to real property taxes. The city tax bill in the sum of $486.65 for the period from July 1, 1972 — June 30, 1973 was put into evidence by defendants. There was uncontradicted testimony to the effect that the city tax bill for the year before and the year after this pеriod was "approximately the same”. Thus, the city tax for the five months before July 1, 1972 and the five months after June 30, 1973 would amount to $405.54, or a total city tax credit to defendants of $892.19. The county tax bill in evidence for the calendar year 1972 was $144.03. The same tеstimony as to similarity of other years bills was given as to the county tax bill for the balance of the 22 months not included in the bill in evidence. This would make the county
Consequently, the record before us establishes that plaintiffs have sustained a total of $10,795.75 in damages directly attributable to defendants’ failure to convey the property at the original date of closing. Against this amount defendants have a credit or offset of $5,246.82. The judgment therefore, should be reversed and plaintiffs should have judgment in the sum of $5,548.93.
Cardamone, J. P., Simons, Del Vecchio and Witmer, JJ., concur.
Judgment unanimously reversed on the law and facts with costs and judgment entered in favor of plaintiffs in accordance with opinion by Goldman, J.