Hammerston v. Woodwell Holding Corp.

Appellate Division of the Supreme Court of New York

Hammerston v. Woodwell Holding Corp.

238 A.D. 794

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

DecidedFebruary 15, 1933

StatusPublished

This text of 238 A.D. 794 (Hammerston v. Woodwell Holding Corp.) 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.

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Hammerston v. Woodwell Holding Corp., 238 A.D. 794 (N.Y. Ct. App. 1933).

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Opinion

Judgment affirmed, with costs. No opinion. Lazansky, P. J., Carswell and Davis, JJ., concur; Kapper, J., with whom Scudder, J., concurs, dissents and votes to reverse and to grant judgment for plaintiff, with the following memorandum: The fact that a deed passed while installment payments were being [795]*795made did not leave plaintiff without the remedy of rescission. (Makes v. Community Founders, Inc., 232 App. Div. 778.) The purchase, as is always the case with these sales of lots in contemplated developments, was induced because of promised improvements. These improvements were neither wholly nor substantially installed at the time promised, time here being of the essence of the contract, and when plaintiff demanded a return of bis money as soon after the date fixed for completion as he saw the property, the conditions were obviously such as to constitute a breach of the contract. The finding that when plaintiff demanded his money back the promised improvements were in a state of substantial completion is wholly devoid of evidence for its support.

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Judgment affirmed, with costs. No opinion. Lazansky, P. J., Carswell and Davis, JJ., concur; Kapper, J., with whom Scudder, J., concurs, dissents and votes to reverse and to grant judgment for plaintiff, with the following memorandum: The fact that a deed passed while installment payments were being [795]*795made did not leave plaintiff without the remedy of rescission. (Makes v. Community Founders, Inc., 232 App. Div. 778.) The purchase, as is always the case with these sales of lots in contemplated developments, was induced because of promised improvements. These improvements were neither wholly nor substantially installed at the time promised, time here being of the essence of the contract, and when plaintiff demanded a return of bis money as soon after the date fixed for completion as he saw the property, the conditions were obviously such as to constitute a breach of the contract. The finding that when plaintiff demanded his money back the promised improvements were in a state of substantial completion is wholly devoid of evidence for its support.

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238 A.D. 794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hammerston-v-woodwell-holding-corp-nyappdiv-1933.

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