109 N.Y.S. 207 | N.Y. App. Div. | 1908
This is an action by a vendee of certain real property to-, enforce specific performance of the contract or to recover the down payment and expenses of examining tlie title, and ¡have the amount thereof declared a Hen upon and enforced against the land. The trial court has found that the deed tendered by the vendor was not a substantial compliance with the contract in that there was a material difference between the quantity of' land described in the contract and the land described in the deed-,, to which only defendant had. title. We are of opinion that' the proper construction of the contract shows that.the purchase was not according to the quantity of land, but of three lots, already built upon, with fixed boundaries open and obvious, in bulk, for a gross sum, and that there is not.such; a variance between the figures' in the contract indicating the. dimensions and the actual dimensions as shown by the survey and described in the deed tendered as justified the purchaser in refusing to. accept the title. . The contract was made on the 18th day .of June, 1906. The witness clause-recites that the defendant agreed to convey arid the plaintiff agreed to purchase “ All that lot or parcel of land, in the County of New York, 346-348-350 [St-.] Nicholas Ave., with the buildings and improvements thereon, described as follows :* Party of the first part agrees to sell and' convey [to] the party ’ of the second part $346-348-350 St. Nicholas Ave., plot being size 25-3x81, 25-2x101) and 25-2x97, all parcels being the same size both front and rear more or less.” The purchase price was $76,500. The words 5t'more .or less ” in the contract, qualifying the dimensions, must be given force and effect. There can be no force given to them if the owner is to be held to tendering title to property of the precise dimensions specified in the contract. Of course, if there should be quite a material variance between the measurements specified in the contract and the actual measurements, this might in effect constitute' a misrepresentation, notwithstanding the insertion of the clause “ more . or less,” and in such case a court of equity would not enforce perforrriance. These words, however, fairly construed,-qualify all of the dimensions an/l not merely the dimensions across the front and rear, as contended by the learned counsel for the respondent. It is quite clear, I think, that this was an entire, indivisible purchase of the three' parcels/ and I do not understand that
e
On the day for closing the title the. defendant failed to appear at the time and place specified, but appeared three days later and excused his failure, and negotiations were resumed as if at the time agreed upon. The attorney, for the plaintiff at this time stated that lie had discovered a shortage in the measurements and desired time
• Patteeson, P. J., McLaughlin, Houghton and Scott, JJ., concurred.
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Judgment reversed, new trial ordered, costs to appellant to abide event.'