128 N.Y.S. 518 | N.Y. App. Div. | 1911
The judgment is for the specific performance of a contract in writing between the parties made on the 7th day of October, 1909,
On the 25th day of October, 1909, the Title Insurance Company certified that the title was then in the plaintiff, and it was assumed, but not otherwise shown, that the plaintiff had title to the premises on November 1, 1909, the date specified in the contract for closing it; but it would seem that title was in one Harry E. Baer at the time the contract was made, for the premises were conveyed to him on November 2, 1908, and on September 9, 1909, he contracted to sell and convey them to I. Randolph Jacobs, who was acting for one Cutner, whom plaintiff as a holding company represented. Pursuant to their agreement the parties met on November 1, 1909, to perform the contract. Plaintiff tendered a deed, but defendant objected to performing upon the grounds, among others, that a certain tenement house violation, so called, filed by the tenement house department on the 25tli day of September, 1908, by which the use of six rooms in the eeller or basement, designed for and then occupied by the janitor of the building and his family, was required to be discontinued unless a permit for such use was obtained from the tenement house department, had not been removed, and that certain mortgages contained unusual and burdensome clauses, and did not comply with the contract. Such a permit was required before said rooms could lawfully be used for living purposes, and it had never been obtained and could not lawfully be issued because the building did not conform to the requirements of the Tenement House Law, in that the sizes of the windows in three of the rooms in the apartment were less than one-eighth of the superficial area of the rooms. It was expressly provided in the contract, among other things, that the plaintiff would comply with all notices of violations of law or municipal ordinances, and all orders and requirements of the tenement house department, “against or affecting the premises at the date hereof,” and would convey the premises “ free of the same.” It was further expressly covenanted by the plaintiff as follows: “ All
Without passing upon the question as to whether performance after the defendant had elected to rescind could avail the plaintiff even in an equitable action, we agree with the learned counsel for defendant that his client was entitled to a conveyance of the premises substantially as they were when he inspected them and made
On this ground, therefore, standing alone defendant would be entitled to a reversal of the judgment, but it may also be observed that if a court of equity could relieve the plaintiff from the effect of the rescission of the contract made by the defendant on plaintiff’s failure to perform on November 1, 1909, a point on which we deem it unnecessary to express an opinion at this time, and if plaintiff had been able to perform at the time of the trial, conditions had so changed to the prejudice of defendant, ten apartments having been then vacant, whereas only one was vacant when the contract was made and it does not appear that this situation had changed at the time of performance, that specific performance should not have
The material facts with respect to the tenement house violation and the mortgages are found, and since they cannot be changed in a new trial plaintiff cannot recover in the action and we may dismiss the complaint without granting a new trial, even though we do not approve all the findings of fact and particularly one to the effect that there was no material change in the situation between the date for closing the title and the time of the trial.
Appellant in his points in chief asks that the judgment be reversed and the complaint dismissed. In his points in reply he asks that he be given judgment for the relief demanded in the answer without a new trial. We could direct judgment for the amount of the down payment with interest, but not for the expenses of examining the title, for there is no finding that his disbursements in that regard, which are found to have exceeded $300, were the reasonable value of the services. We are of opinion, therefore, that the judgment should be reversed, with costs to appellant, and a new trial ordered unless defendant stipulates not to prosecute his counterclaim in this action, in which case the complaint is dismissed, with costs.
Ing-baham, P. J., McLaughlin, Soott and Miller, JJ., concurred.
Judgment reversed, with costs to appellant, and new trial ordered, unless defendant stipulates not to prosecute his counterclaim in this action, in which case the complaint is dismissed, with costs. Settle order on notice.