131 N.Y.S. 645 | N.Y. App. Div. | 1911
Elizabeth L. Shepman, plaintiff’s assignor and president, as Vendee, made a contract with defendant for the purchase of 132 lots at the rate of $350 per lot, and reference was had to a filed map. The payments were due, $500 on execution of the contract; $3,500 on or before September 25, 1906; $8,000 on or before October 15, 1906, at which time the title should pass, and a mortgage for the balance of the purchase money was promised. The first payment was made, but only $500 of the second payment, due September twenty-fifth, was made, either through pecuniary inconvenience or the vendee’s apprehension of the vendor’s inability to fulfill, and further performance by vendee was continued to October twenty-ninth, and passing of title was set for November fifteenth. There was no further payment made or tendered by the vendee or the assignee. After the vendee’s failure to pay the $3,000 balance postponed to October twenty-ninth, the defendant threatened a forfeiture, and this resulted in a letter dated November twelfth from plaintiff’s lawyers, intimating an action against the vendor and suggesting a conference for adjustment. There was no meeting on November fifteenth, but on November nineteenth the par-ties did meet, and an unavailing discussion resulted in an adjournment to November twenty-first, when no money or deed was tendered, and there was a-final parting in disagreement. Search showed that years earlier defendant’s husband, Sussman, had for some purpose conveyed two lots to Rosen, taking a purchase-money mortgage for $400, and that he retained custody of. the deed. Hence, conveyance of these lots could not he had pending foreclosure of the mortgage, and unless time were afforded for that purpose, the vendor could not fulfill, and her agent,. Miv Sussman,, admitted the; inability.. Rut em the. trial! evidence; wag- given, isa behalf ®£ the> defendant that the- purchaser- wag; apprised before-, the-, contract was executed of. the-, difficulty,, and’, consented that a conveyance of the two lots- could he- made; opportunely. The learned trial justice withdrew from the jury the whole issue as to these two lots by an instruction that a tender of a deed for 130 lots would have been substantial performance,, “ but,” he added, “ it wouldhaye to be clear
The judgment and order should be reversed and a new trial granted, costs to abide the event.
Jenks, P. J.., Hirschberg, Burr and Carr, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.