221 A.D. 170 | N.Y. App. Div. | 1927
This is an appeal from an order and judgment granting summary judgment to the plaintiff. The appeal must succeed inasmuch as the affidavits show that there are issues of fact which should await a trial.
The pleading and facts, in so far as they are necessary to show the reasons for the reversal, are briefly as follows: The complaint alleges that Joseph L. Cornman is a son of Charles Cornman and that Monochim Menschel is a son-in-law of Charles Cornman; that the defendants were copartners in the purchase for $10,000 of an option owned by the plaintiff, under which he could purchase beach front at Rockaway Beach, L. I.; that Joseph L. Cornman paid $1,000 on account of the purchase of the option and that thereafter Monochim Menschel, pursuant to the option, entered into a contract with the owner of the fee and that there is no defect in the title; judgment is, therefore, demanded in the sum of $9,000. That portion of the answer relating to the reasons for the reversal denies the partnership and sets up, as a separate defense, that the owner of the premises was not able to deliver title to at least eighty-five per cent of the land approximately described and could only deliver a plot ten feet in width, on one side and eleven feet in width on the other side, instead of one hundred feet on one side and sixty feet on the other side, as approximately described in the contract.
Taking up first the issue of copartnership, it appears that Joseph L. Cornman alone signed the written agreement to purchase the
There is, however, another reason which requires a reversal of this summary judgment, and this reason affects all three defendants. As already noted, in the contract of purchase of the option it was expressly provided: “ If the title is not marketable then the said sum shall be returned to said Joseph L. Cornman.” There was thus present a condition precedent, compliance with which must precede the right of the plaintiff to recover the purchase price of the option, namely, that the owner of the land had title in accordance with the contract of sale. A sharp issue was raised as to whether under the wording of this contract of sale, the title which the owner of the land tendered might be considered a compliance therewith. The description in the contract of sale was as follows: “ Bounded southerly by the Atlantic Ocean approximately one hundred feet on Florence Avenue, northerly by a line drawn at right angles at a point approximately one hundred feet north of ocean on Florence Avenue to a point on the easterly side of Seaview Avenue, distant approximately sixty feet more or less from the ocean; then sixty feet along easterly side of Seaview Avenue to the ocean, being the point or place of beginning; being such part of the said parcel of land as exists and is owned by the seller at the time of the signing of this agreement.” To sustain the construction which he desires, the plaintiff in an affidavit says: “ That at the time of the signing of this contract, counsel
While the language in the cause at bar can be claimed to be more elastic than that in Paine v. Upton, yet the same principle applies and no authority has been brought to our attention where as a matter of law such a clause has excused the conveyance of over eighty-five per cent of the land fairly comprised within the approximate description and where at the same time the purchaser should be compelled to pay the same purchase price. The clause is fairly susceptible of two meanings and is, therefore, ambiguous. In the absence of evidence showing unusual circumstances, to construe the clause as contended for by the plaintiff would be most
It follows that the judgment and order appealed from should be reversed, with costs, and the motion denied, with ten dollars costs.
Dowling, P. J., Martin, O’Malley and Proskauer, JJ., concur.
Judgment and order reversed, with costs, and motion for summary judgment denied, with ten dollars costs.