Rockland-Rockport Lime Co. v. Leary, 117 N.Y.S. 405

Rockland-Rockport Lime Co. v. Leary

117 N.Y.S. 405 | N.Y. App. Div. | 1909

Gaynor, J.:

It is not disputed that the plaintiff gave sufficient notice of the exercise of its option to purchase the property, but judgment went *381against it below on the ground that it tendered the purchase price to tiie administrator instead of to the heirs. The contract was that it should make the tender to the lessor “ or his legal representative ”, and it was held below that this meant the heirs and not the administrator. This construction seems to have been erroneous. The contract could not have contemplated that the money should be tendered to the heirs for the obvious reason that they would not be entitled to it, but that on the contrary it would be payable to the administrator. It certainly was not meant that there should be a tender of the money to persons not entitled to it and who could not receive it. The law will not presume an absurd intention as against a reasonable and obvious one; And that the administrator comes within the phrase “legal representative” is not to be disputed. The case is the very same as it would be if the phrase “ or his legal representative” were not in the contract. The question would be then as now who is entitled to receive the money, the vendor being dead, for the tender of the money must be made to the person entitled to receive it. If we had to deal with a contract of sale, simpliciter, no one would dispute that there was an equitable conversion of the realty into personalty by such contract, and that the administrator would be the only person entitled to receive the purchase, money, for such is the settled rule in this state (Potter v. Ellice, 48 N. Y. 321; McCarty v. Myers, 5 Hun, 83). The contention is that the rule does not apply to this case because of the option. The contrary is fully established in other jurisdictions, and is the general rule, although the' point has not arisen in this state (Lawes v. Bennet, 1 Cox Ch. 167; Matter of Isaacs, L. R. 3 Ch. Div. [1894] 506; Kerr v. Day, 14 Penn. St. 112; Keep v. Miller, 42 N. J. Eq. 100; Newport Water Works v. Sisson, 18 R. I. 411; Tiffany’s Modern Law of Real Prop. 266; Pomeroy’s Eq. Jur. § 1163; Sugden on Vendors [8th Am. ed.], *187, 188; Lewin on Trusts [8th ed.], 952; Waterman on Spec. Perf. § 200). It would seem that the rule should not be changed in this state.-

The judgment should be reversed.

Hirschberg, P. J., Rich and Miller, JJ ., concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.