Hudson v. Matter

219 A.D. 252, 219 N.Y.S. 555, 1927 N.Y. App. Div. LEXIS 10890

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 14, 1927
• Status: Published

Opinion

Per Curiam.

It appears that the plaintiff has abandoned the premises he purchased by contract from the defendant, though there is no express finding to that effect. It appears further that besides assuming a mortgage for $4,700 he has paid $5,000 on the principal, and judgment has been rendered against him for $3,185.20, the sum remaining unpaid on principal and interest. The personal property he bought with the farm was valued at $2,750." This has been released by defendant Matter. Improvements of considerable cost have been added to the farm by plaintiff. If this judgment is given full effect, the defendant will have his farm back with the improvements, more than $5,000 in money besides interest, and a judgment against plaintiff for $3,469.12 including costs. This does not seem equitable. The defendant’s answer sets up claims and demands for equitable relief. He must do equity by the plaintiff in obtaining his own remedy. It is quite evident that a judgment providing that plaintiff may have the farm by paying the balance due within thirty days awards him no equitable remedy. It is a mere gesture. The interest of the parties in the property should be determined by a sale. The judgment should be modified by striking out the portion barring and foreclosing the plaintiff and the defendant Florence Hudson of all right, title and interest under the contract unless the balance of the purchase price is paid within thirty days, and providing for the usual sale on foreclosure with provisions for disposing of the surplus or for deficiency judgment, and the action remitted to the Special Term to take such further proceedings, including amending the judgment in accordance with this opinion, as the parties may be advised, without costs on this appeal.' In other respects the judgment should be affirmed.

Van Kirk, Acting P. J., Hinman, McCann and Davis, JJ., concur; Cochrane, P. J., not voting.

Judgment modified in accordance with opinion, and case remitted to the Special Term to take further proceedings in accordance with the opinion. In other respects judgment is affirmed, without costs.