Dowling v. Miller-Kendig Real Estate Co.

Appellate Terms of the Supreme Court of New York

Dowling v. Miller-Kendig Real Estate Co.

115 N.Y.S. 154

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 5, 1909

StatusPublished

This text of 115 N.Y.S. 154 (Dowling v. Miller-Kendig Real Estate Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dowling v. Miller-Kendig Real Estate Co., 115 N.Y.S. 154 (N.Y. Ct. App. 1909).

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Opinions

PER CURIAM.

Plaintiff purchased three lots at Hempstead, L. I., April 28, 1906, for $575, agreeing to pay $57.50 cash and $10 monthly, [155]*155and 4 per cent, per annum on unpaid balances, together with taxes and assessments. Plaintiff’s payments up to February 38, 1908, aggregated $387.31, which he seeks to recover on the ground that the lots were substantially deficient in depth and that a granolithic sidewalk was not laid in front of his premises, by reason of which the lots were unsalable. Defendant counterclaimed the plaintiff’s failure to make monthly payments since March 38, 1908, and demanded forfeit of the payments made under the terms of the agreement. Judgment was rendered for plaintiff for $333.47.

The contract provided that defendant should grade all streets, plant suitable shade trees, and lay granolithic sidewalks in front of each lot. No time for so doing was specified, but this work has not been begun. The map referred to in the agreements shows the lots in question to average about 71 feet in depth. Assuming the jurisdiction of the Municipal Court to dispose of this issue, it seems to me that plaintiff cannot succeed in attempting to show that the lots were represented to him to be 100 feet in depth, for the reason that his contract is based in that particular upon the map. Plaintiff is not entitled to a deed until he has made all his payments, and as no time was mentioned for the construction of a sidewalk in front of his lots it would seem reasonable that he may not now refuse to perform his obligation. This enterprise shows many hundreds of lots facing on many streets. A purchaser in these circumstances should realize that such a clause related to the enterprise generally. To say arbitrarily that defendant must at once, or within two years, place these sidewalks in front of the lots of each purchaser, or return the purchase price paid on account, would result in a construction of the contract not jointly contemplated by the parties.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.

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PER CURIAM.

Plaintiff purchased three lots at Hempstead, L. I., April 28, 1906, for $575, agreeing to pay $57.50 cash and $10 monthly, [155]*155and 4 per cent, per annum on unpaid balances, together with taxes and assessments. Plaintiff’s payments up to February 38, 1908, aggregated $387.31, which he seeks to recover on the ground that the lots were substantially deficient in depth and that a granolithic sidewalk was not laid in front of his premises, by reason of which the lots were unsalable. Defendant counterclaimed the plaintiff’s failure to make monthly payments since March 38, 1908, and demanded forfeit of the payments made under the terms of the agreement. Judgment was rendered for plaintiff for $333.47.

The contract provided that defendant should grade all streets, plant suitable shade trees, and lay granolithic sidewalks in front of each lot. No time for so doing was specified, but this work has not been begun. The map referred to in the agreements shows the lots in question to average about 71 feet in depth. Assuming the jurisdiction of the Municipal Court to dispose of this issue, it seems to me that plaintiff cannot succeed in attempting to show that the lots were represented to him to be 100 feet in depth, for the reason that his contract is based in that particular upon the map. Plaintiff is not entitled to a deed until he has made all his payments, and as no time was mentioned for the construction of a sidewalk in front of his lots it would seem reasonable that he may not now refuse to perform his obligation. This enterprise shows many hundreds of lots facing on many streets. A purchaser in these circumstances should realize that such a clause related to the enterprise generally. To say arbitrarily that defendant must at once, or within two years, place these sidewalks in front of the lots of each purchaser, or return the purchase price paid on account, would result in a construction of the contract not jointly contemplated by the parties.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.

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115 N.Y.S. 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dowling-v-miller-kendig-real-estate-co-nyappterm-1909.