Hirsch v. Lindor Realty Corp.

87 A.D.2d 554, 448 N.Y.S.2d 192, 1982 N.Y. App. Div. LEXIS 15796

Opinion

Judgment of the Supreme Court, New York County (Pécora, J.), entered May 8, 1981, which declared plaintiff to be the sole and true owner of a consolidated mortgage described therein and possessed of all right, title and interest of defendant corporation, which was held to have no right, title or interest in same, is reversed, with costs, on the law and the facts and judgment is directed to be entered in favor of defendant on condition that within 30 days after entry thereof, defendant tender to plaintiff the amount of $55,492.28. Despite the dates for payment contained in the option agreement, the parties, as was the practice in the previous dealings between them, chose by their actions to waive the established time periods. Only as to the final payment was time considered to be of the essence, and, in this instance, there was a timely tender of payment. Under these circumstances, and where there has been no showing by plaintiff of a change in his position, equity may appropriately intervene to prevent a forfeiture. Concur — Ross, J. P., Bloom, Fein and Milonas, JJ.