119 Misc. 73 | N.Y. Sup. Ct. | 1922
This is a motion by defendants for judgment on the pleadings. The case arises out of the sale of a steam tug by the defendants to plaintiff under a contract, whereby it was provided that title was not to pass until the full payment of the purchase price of $32,500, which was to be by a down payment of $5,000, and thereafter $1,000 monthly. The vendee agreed to keep the tug in first class repair, free from any and all libels, and with fire and compensation insurance, and agreed “ to indemnify and save harmless ” the vendor “ from any and all claims arising out of the operation and control ” of the tug. In case of default in any of the payments, or violation of any of the terms and conditions of the agreement, the vendor might retake possession, “ and in that event, any and all payments previously made, shall be deemed to be, and shall be applied solely as rental,” the vendee waiving, in case of such retaking, “ any and all claims that he has or had, in and to the said tug.” In or about October, 1920, the tug sank, and defendants paid the expense of raising it, amounting to $1,125. Plaintiff did not repay this amount, and thereafter made no payments whatsoever. He had to that time made payments aggregating $23,518.87, which defendants had applied upon a running account made up of the purchase price, and certain payments, made at plaintiff’s request, for insurance, repairs, expense of raising, etc., and which showed a total of charges of $47,597.72,
Ordered accordingly.