Citations
- 123 A.D. 919
Full opinion text
No opinion. Present—Patterson, P. J., McLaughlin, Houghton, Scott and Lambert, JJ.; Houghton and Lambert, JJ., dissenting.
Lambert, J. (dissenting):
The plaintiff entered into an agreement in writing with Hugo Lamprecht, defendant’s testator, on the 17th day of August, 1905, by the terms of which agreement the said Hugo Lamprecht undertook to sell, and the plaintiff to purchase, certain premises described in the complaint, and located at One Hundred and Twentieth street, for the sum of §7,500. The vendor agreed to convey the said premises free from all incumbrances, excepting a certain party wall agreement, and to pay the taxes for the year 1905. The plaintiff paid $500 on account of the purchase price and' agreed to pay the balance of §7,000 on the delivery of the deed, it being agreed that if the title to the premises proved defective the vendor should restore the §500, and the contract was to be canceled. The deed was to be delivered at the office of Lese & Connolly, Ho. 35-Nassau street, New York, on the 5th day of October, 1905, at eleven qicloclc A. li. On the day agreed upon the parties met, and there -is no dispute that at that time there was an outstanding mortgage of $2,000 held by the Bowery Savings Bank, and, so far as the record discloses, this mortgage is still outstanding, so that at no time has the vendor been in a position to tender a title free and clear of all • incumbrances, but there is a suggestion in the evidence that the understanding between the parties was that this mortgage was to be paid, off out of the$7,000 which the plaintiff had agreed to pay upon the delivery of the deed. While the parties were together on'the 5th day of October, 1905, a written agreement was, entered into' in the following language: ' '
“ The ¿losing of title under contract dated the 17th day of August, 1905, between Hugo Lamprecht, as vendor, and Louis Lese, as vendee, of the premises No. 514 East One hundred and Twentieth Street, New York City, is hereby adjourned to November 3, 1905, at 11 o’clock a. m., at the office of Lese & Connolly, at No. 35 Nassau Street, New York City.
“It is understood and agreed that the vendee will pay interest on the balance of the purchase money from the date hereof to November 3, 1905, and that the vendor can remain in possession of said premises from November 3‘, 1905, to December 1,1905, as a tenant at a rental of one dollar ($1). Title to be closed as of October 5, 1905. .
“Dated, New York, October 5; 1905.
“(Signed) HUGO'LAMPRECHT.’’
On the third day of November, after some preliminary interchange of communications, the parties met at the office of Bowers & Sands, rvlio were conducting negotiations for a loan upon the premises in connection with an adjoining parcel. ownéd by the plaintiff, and the vendor was told that-the loan had been arranged and that the money would be forthcoming as soon as the search from the Lawyers’Title Insurance and Trust Company could be procured, which-would be upon that day or upon the following day. The vendor thereupon refused to delay the closing any longer, and a deed, in form-and substance; complying with the requirements'of the contract* was- tendered... This,-of course, the plaintiff was unable to accept at the moment,, as he was unprepared to pay over the §7,000; but Mr. Lamprecht was informed by a Mr. Baskerville, representing Bowers-& Sands, that the contract called for a conveyance, free of incumbrances, and that this-§2,000 mortgage was outstanding, and told him that if he would, clear the title that he would see to it that the money was paid, but Mr. Lamprecht insisted upon a-tender of the deed and, upon the plaintiff failing to accept the same; the -parties retired. Mr. Ball, attorney for the vendor, told Mr. Lese and Mr. Baskerville that he would see what could be done toward bringing about a closing of the transaction, and on the following Monday, November sixth, Mr. ' Ball and Mr. Lese, one of plaintiff’s attorneys, had a conversation over the telephone, in which Mr. Ball Was informed that an action was about to be started