112 N.Y.S. 246 | N.Y. Sup. Ct. | 1908
This is an action for specific performance of a contract to convey real property, or in the alternative for damages for breach of contract, if specific performance cannot be decreed. The defendant has refused to perform, principally on the ground that the contract was procured by false and fraudulent representations as to the value of the property on the part of the vendee or his privies. The contract was signed by the defendant about February 19, 1906, while she was residing in the State of Florida. The land in question is located in Nassau county, N. Y., near the village of Amityville. The defendant is a woman of seventy years of age but, as she appeared on the witness stand, of unimpaired faculties and considerable natural talents and shrewdness. At the time the contract was made she resided with her daughter and son-in-law at West Palm Beach, Fla. It was forwarded to her by mail for execution and signed, acknowledged and returned by her. It was not the result of a sudden impulse, and there was at least some time for reflection. It covered some forty-five lots of land and, in addition, a long strip of land running along a public highway, and but ten feet in width. The
The plaintiff, however, does not ask specific performance as to this strip, having, on the trial, expressly eliminated it from his demand, because of some uncertainty of title. It will, therefore, be omitted from consideration now. As to the remaining forty-five lots there is again a conflict between the experts. The plaintiff’s witness appraises them at $720' in bulk, while the defendant’s witness places their value at several thousand dollars. This latter valuation seems to me far-fetched in the extreme, and I cannot accept it as established.
Apparently, however, the vendor sold for a price much less than the actual value, but this fact would not in itself alone constitute a defense even in equity. Losee v. Morey, 57 Barb. 561. At law it would be no defense at all," concededly, in the absence of fraud. In this action the plaintiff is entitled either to specific performance or to his damages. TTis damages would embrace those covered by the loss of his bargain. Pampelly v. Phelps, 40 M. T. 59; Sloan v, Baird, 162 id. 327; Marsh v. Johnston, 125 App. Div. 597. According to the plaintiff’s proof such damages would not be less than $370; while, according to the defendant’s proof, they would exceed several thousand dollars. In either event
I do not see how the position of the defendant can be improved in this case by a refusal of specific performance and an admeasurement of the damages recoverable. Under these circumstances specific performance should not be refused.
The defendant further resists the relief sought by the plaintiff on the ground of laches. This action was not brought until fourteen months after the right of action accrued. In my opinion, this delay was not sufficient to deprive the plaintiff of, his rights. Oovarfc v. Johnston, 15 R. Y. Supp. 785; 137 R. Y. 560, is cited to the contrary. That case was decided on several grounds, and the question of laches- was intermingled with other questions which controlled the decision.
Ror do I think that the objection urged by the defendant as to the fact that, in the contract between the parties, the land is described as being in Suffolk county presents any insuperable difficulty to the plaintiff’s relief. This contract was the result of considerable correspondence between the parties. The land lay in a neighborhood, generally known as Amityville, near the dividing line between Rassau and Suffolk counties. Both parties had clearly in mind the identical property, and there was no mistake between them as to what they were dealing with. Under these circumstances
Judgment is, therefore, directed for the plaintiff, except as to the strip of land running along the highway.
Judgment for plaintiff.