Friedman v. Fishbein

Appellate Division of the Supreme Court of New York

Friedman v. Fishbein

215 A.D. 174, 213 N.Y.S. 158, 1926 N.Y. App. Div. LEXIS 10931

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

DecidedJanuary 6, 1926

StatusPublished

Cited by2 cases

This text of 215 A.D. 174 (Friedman v. Fishbein) 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

Friedman v. Fishbein, 215 A.D. 174, 213 N.Y.S. 158, 1926 N.Y. App. Div. LEXIS 10931 (N.Y. Ct. App. 1926).

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Opinion

Van Kirk, J.

This is an action at law. The plaintiffs, the vendors, sought to recover money damages for breach of a contract to sell land. Defendant, the vendee, for a counterclaim, sought to recover the payment he made to plaintiffs when the contract was executed, and damages, the amount of the latter being stipulated at $150.

The plaintiffs were to convey the premises free and clear of incumbrances, except two mortgages aggregating in amount $36,000. Plaintiffs were to procure certain modifications of the two mortgages as to terms of payment. There were several other liens upon the property. The due date of the contract was March 6, 1924. This date by stipulation in writing was extended to March 11, 1924. On March eleventh the defendant and his attorney attended at the office appointed for completion of the transaction, but the plaintiffs did not appear. On the following day the defendant and his attorney again went to this office and there met the plaintiffs. The plaintiffs tendered a deed, which defendant refused to accept, because the liens had not been removed from the premises and other conditions of the contract had not been complied with, because a marketable title was not tendered. Plaintiffs did not claim that they had cleared the title, but made offers as substitutes for compliance, which offers defendant refused. No definite request for delay was made by plaintiffs, nor was any time named by them when they would be able to perform in full. The defendant insisted upon present performance and refused to wait longer. He then left the office. Within a short time, and that same afternoon, plaintiffs caused the summons in this action to be served on the [176]*176defendant. They did not proceed as soon as possible to clear the title and tender performance.

In this action at law the time stipulated for performance of the contract was of the essence thereof. (Schmidt v. Reed, 132 N. Y. 108, 113.) Under the circumstances the defendant was not bound to extend the time for performance by plaintiffs, nor was he bound to accept plaintiffs’ offers of substitutes for performance of the terms of the contract. There was no breach of the contract on the part of the defendant, but there was on the part of the plaintiffs. The complaint then was properly dismissed. Defendant was ready and tendered and demanded performance; he was rightfully awarded judgment on his counterclaim.

The judgment and order should be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.

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Van Kirk, J.

This is an action at law. The plaintiffs, the vendors, sought to recover money damages for breach of a contract to sell land. Defendant, the vendee, for a counterclaim, sought to recover the payment he made to plaintiffs when the contract was executed, and damages, the amount of the latter being stipulated at $150.

The plaintiffs were to convey the premises free and clear of incumbrances, except two mortgages aggregating in amount $36,000. Plaintiffs were to procure certain modifications of the two mortgages as to terms of payment. There were several other liens upon the property. The due date of the contract was March 6, 1924. This date by stipulation in writing was extended to March 11, 1924. On March eleventh the defendant and his attorney attended at the office appointed for completion of the transaction, but the plaintiffs did not appear. On the following day the defendant and his attorney again went to this office and there met the plaintiffs. The plaintiffs tendered a deed, which defendant refused to accept, because the liens had not been removed from the premises and other conditions of the contract had not been complied with, because a marketable title was not tendered. Plaintiffs did not claim that they had cleared the title, but made offers as substitutes for compliance, which offers defendant refused. No definite request for delay was made by plaintiffs, nor was any time named by them when they would be able to perform in full. The defendant insisted upon present performance and refused to wait longer. He then left the office. Within a short time, and that same afternoon, plaintiffs caused the summons in this action to be served on the [176]*176defendant. They did not proceed as soon as possible to clear the title and tender performance.

In this action at law the time stipulated for performance of the contract was of the essence thereof. (Schmidt v. Reed, 132 N. Y. 108, 113.) Under the circumstances the defendant was not bound to extend the time for performance by plaintiffs, nor was he bound to accept plaintiffs’ offers of substitutes for performance of the terms of the contract. There was no breach of the contract on the part of the defendant, but there was on the part of the plaintiffs. The complaint then was properly dismissed. Defendant was ready and tendered and demanded performance; he was rightfully awarded judgment on his counterclaim.

The judgment and order should be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.

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215 A.D. 174, 213 N.Y.S. 158, 1926 N.Y. App. Div. LEXIS 10931, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friedman-v-fishbein-nyappdiv-1926.

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