Byrne v. Collins

Appellate Division of the Supreme Court of New York

Byrne v. Collins

142 A.D.2d 661, 531 N.Y.S.2d 17, 1988 N.Y. App. Div. LEXIS 7951

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 18, 1988

StatusPublished

Cited by4 cases

This text of 142 A.D.2d 661 (Byrne v. Collins) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Byrne v. Collins, 142 A.D.2d 661, 531 N.Y.S.2d 17, 1988 N.Y. App. Div. LEXIS 7951 (N.Y. Ct. App. 1988).

Pincite

Opinion

— In an action to recover a down payment made pursuant to a contract of sale of certain real property, the defendants appeal from an order of the Supreme Court, Orange County (Ritter, J.), dated November 14, 1987, which granted the plaintiffs’ motion for summary judgment and denied their cross motion for summary judgment.

Ordered that the order is affirmed, with costs.

The record establishes that the plaintiffs entered into a contract with the defendants for the sale of the defendants’ home to the plaintiffs. Performance of the contract was expressly conditioned upon (1) the plaintiffs’ ability to sell their own home in Warwick and (2) their ability to obtain a firm mortgage commitment from a reputable lending institution. The plaintiffs promptly obtained the mortgage approval, but [662]*662the approval was withdrawn prior to the contract closing date due to the loss of employment by the plaintiff Edmond Byrne. Moreover, the plaintiffs were unable to sell their home. The plaintiffs duly informed the defendants of their inability to go forward with the contract due to the withdrawal of the mortgage commitment and demanded their down payment. When the defendants refused to return the money the plaintiffs commenced this action.

The documents show that the plaintiff Edmond Byrne’s employment terminated in May 1987, that the lender revoked the mortgage commitment due to the insufficient income and, that prior to informing the defendants of the plaintiffs’ inability to go forward with the contract Mr. Byrne made a genuine effort to secure other employment in order to get the mortgage commitment reinstated. It is therefore clear that there was no willful breach of the contract of sale by the plaintiffs. Under the circumstances, we agree with the Supreme Court that the plaintiffs are entitled to the return of their down payment (see, Bobrowsky v Landes, 124 AD2d 618; Lane v Elwood Estates, 31 AD2d 949, affd 28 NY2d 620). Mangano, J. P., Brown, Lawrence and Harwood, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

— In an action to recover a down payment made pursuant to a contract of sale of certain real property, the defendants appeal from an order of the Supreme Court, Orange County (Ritter, J.), dated November 14, 1987, which granted the plaintiffs’ motion for summary judgment and denied their cross motion for summary judgment.

Ordered that the order is affirmed, with costs.

The record establishes that the plaintiffs entered into a contract with the defendants for the sale of the defendants’ home to the plaintiffs. Performance of the contract was expressly conditioned upon (1) the plaintiffs’ ability to sell their own home in Warwick and (2) their ability to obtain a firm mortgage commitment from a reputable lending institution. The plaintiffs promptly obtained the mortgage approval, but [662]*662the approval was withdrawn prior to the contract closing date due to the loss of employment by the plaintiff Edmond Byrne. Moreover, the plaintiffs were unable to sell their home. The plaintiffs duly informed the defendants of their inability to go forward with the contract due to the withdrawal of the mortgage commitment and demanded their down payment. When the defendants refused to return the money the plaintiffs commenced this action.

The documents show that the plaintiff Edmond Byrne’s employment terminated in May 1987, that the lender revoked the mortgage commitment due to the insufficient income and, that prior to informing the defendants of the plaintiffs’ inability to go forward with the contract Mr. Byrne made a genuine effort to secure other employment in order to get the mortgage commitment reinstated. It is therefore clear that there was no willful breach of the contract of sale by the plaintiffs. Under the circumstances, we agree with the Supreme Court that the plaintiffs are entitled to the return of their down payment (see, Bobrowsky v Landes, 124 AD2d 618; Lane v Elwood Estates, 31 AD2d 949, affd 28 NY2d 620). Mangano, J. P., Brown, Lawrence and Harwood, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

142 A.D.2d 661, 531 N.Y.S.2d 17, 1988 N.Y. App. Div. LEXIS 7951, Counsel Stack Legal Research, https://law.counselstack.com/opinion/byrne-v-collins-nyappdiv-1988.

Opinion

Related

Cite This Page — Counsel Stack