88 N.Y.S. 973 | N.Y. App. Div. | 1904
The plaintiff appeals from a judgment dismissing the complaint upon the merits. The action was brought for the specific performance of a contract, made between the plaintiff as vendee and the defendant as vendor of real estate in the city of New York, known as No. 125 Second avenue. It is not to be disputed that the action is one for specific performance, for every alternative demand for
We are of the opinion that the complaint was properly dismissed. The material facts appearing in the record are "the following: The plaintiff is the owner of premises No. 123 Second avenue. Prior to May 6, 1901, an action was pending in the Supreme Court between this plaintiff and other parties to compel those other parties to convey to her the adjoining premises, No. 125 Second avenue. On the 6th of May, 1901, the plaintiff, claiming to have an easement in the premises No. 125 Second avenue, by reason of some restrictions contained in deeds affecting those premises, entered into an agreement with the defendant which, after reciting the pendency of the action referred to and that the parties defendant in that action had contracted to sell the premises No. 125 Second avenue to" the defendant Buttenwieser, and that the plaintiff claimed that there were restrictions affecting those premises in favor of her adjoining property, provided that the defendant Buttenwieser would complete his purchase from .the third parties above referred to and take a conveyance from them within the month of May, 1901, and thereupon this plaintiff agreed to discontinue her pending action against such third parties and to cancel the notice of pendency of the suit for specific performance and the record thereof in the clerk’s office of the city of New York. After those recitals, the defendant Buttenwieser, as party of the first part .to the agreement upon which the present action is brought in consideration thereof and of his having received a deed of 125 Second avenue, and of the sum of $63,000 which the present plaintiff stipulated to pay, agreed to.sell to her all the parcel of land known as No. 125 Second avenue, describing it by metes and bounds, and also agreed to erect upon that lot of land, in place of a building then standing on it, another building seven stories high according to plans filed in the office of the department of buildings, it being expressly agreed that the quality of the materials and
It is apparent, therefore, that by the attitude which the plaintiff
The theory upon which the action proceeds is that specific performance of a contract for the sale of real estate may be directed by the court in cases in which an allowance may be made by way of deduction from the purchase-price for incumbrances or other charges upon the property. There is no doubt of the general rule upon this subject and the English courts have carried-tlie doctrine so far as to compel specific performance of a contract- where the price is fixed but where it. is required to make expenditures for repairs, and have allowed the cost of the repairs in reduction of the purchase price. But the doctrine of the English cases has never been adopted by the courts of this State. Abatement from the purchase price lias been allowed for deficiency in title as to the quantity or quality of the property sold, but none of the cases in tliis State have gone to the extent of making an allowance in diminution of the purchase price named in an executory contract for the sale and purchase of land, where such an allowance would be contrary to the terms of the contract and to the express stipulations of the contracting parties and where it would in effect be making a new contract between them.
It is entirely immaterial to the disposition of this case whether the-doctrine-laid down in Levy v. Hill (50 App. Div. 294 ; 70 id. 95; affd., 174 N. Y. 536) applies or not, and it is not necessary for us to resort to that case to find a rule of decision for this. Here, it is, obvious from the terms of the contract that the defendant Buttenwieser had the right to make any repairs in the nature of defects within sixty ' days after closing the title,
The judgment appealed from should be affirmed, with costs.
Van Brunt, P. J., Ingraham, McLaughlin and Laughlln, JJ., concurred.
Judgment affirmed, with costs.