219 A.D. 537 | N.Y. App. Div. | 1927
The following is the opinion of the court below:
Plaintiff moves to dismiss a counterclaim of the defendant and defendant moves to dismiss the complaint. The defendant claims that under a- certain instrument his obligation was conditional and upon his failure to make a certain payment the contract became void and could not be invoked against him. Plaintiff asserts that the failure of defendant to make that payment only gave Cooper (his assignor) the option to treat the contract as at an end, but did not require him to do so. Cooper elected to treat the contract as subsisting and assigned his rights thereunder and to the contract of sale referred to therein to plaintiff who took title to the parcel involved. A question of law determines for the most part the controversy between the parties. That question of law is what effect is to be given to a paper reading as follows: “ Whereas contract was made by Abraham Miller and Goldie Miller, his wife, as seller and Cooper as buyer, dated August 1, 1925, covering parcel of realty located on the west side of Beach Thirty-fourth street, [description] together with the building and improvements thereon, which contract is initialed by the parties, and Cooper has paid thereon $5,000 and it is desired that said contract be assigned to and assumed by Widlitz for the consideration to be paid by him of $10,000 plus reimbursement in said sum of $5,000 (in all $15,000). Now it is hereby agreed that said Cooper hereby assigns and transfers to said Widlitz the-said contract and all his right, title and interest therein and thereto, which contract said Widlitz assumes and agrees to perform, but said assignment shall be conditional upon and shall not take effect until the payment of $5,000 hereinafter referred to. The sum of $15,000 shall be