Mall v. Sloan

Appellate Division of the Supreme Court of New York

Mall v. Sloan

256 A.D. 891, 9 N.Y.S.2d 646, 1939 N.Y. App. Div. LEXIS 5263

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

DecidedJanuary 11, 1939

StatusPublished

Cited by3 cases

This text of 256 A.D. 891 (Mall v. Sloan) 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

Mall v. Sloan, 256 A.D. 891, 9 N.Y.S.2d 646, 1939 N.Y. App. Div. LEXIS 5263 (N.Y. Ct. App. 1939).

Pincite

Opinion

Judgments affirmed, with costs, on the authority of Born v. Schrenkeisen (110 N. Y. 55); Rollton Syndicate, Inc., v. Widlitz (219 App. Div. 537); Motris v. Green (62 id. 460); Hard v. Seeley (47 Barb. 428), and Western Union Telegraph Co. v. Brown (253 U. S. 101). All concur, except Crosby, J., who dissents and votes for reversal and for dismissal of the complaint in the following memorandum: No fault is found with the rule that “ when a written instrument provides that it shall become void in case of default by one party to perform some covenant therein contained, it becomes void only upon the claim and at the option of the party for whose benefit the covenant was inserted.” (Born v. Schrenkeisen, 110 N. Y. 55.) But when the contract in this case is read as a whole, and not as if it were two separate and independent contracts, it clearly provides, in effect, that defendants had the option either (1) to complete the purchase of the land and thereby secure settlement of a pending lawsuit, or (2) to cancel the contract, by not completing the purchase, on pain of losing the $200 cash payment already made and suffering the lawsuit to take its course. (One judgment is for plaintiffs in an action to compel specific performance of a contract to purchase certain property. The other judgment is for costs.) Present — Sears, P. J., Crosby, Lewis, Cunningham and Taylor, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Judgments affirmed, with costs, on the authority of Born v. Schrenkeisen (110 N. Y. 55); Rollton Syndicate, Inc., v. Widlitz (219 App. Div. 537); Motris v. Green (62 id. 460); Hard v. Seeley (47 Barb. 428), and Western Union Telegraph Co. v. Brown (253 U. S. 101). All concur, except Crosby, J., who dissents and votes for reversal and for dismissal of the complaint in the following memorandum: No fault is found with the rule that “ when a written instrument provides that it shall become void in case of default by one party to perform some covenant therein contained, it becomes void only upon the claim and at the option of the party for whose benefit the covenant was inserted.” (Born v. Schrenkeisen, 110 N. Y. 55.) But when the contract in this case is read as a whole, and not as if it were two separate and independent contracts, it clearly provides, in effect, that defendants had the option either (1) to complete the purchase of the land and thereby secure settlement of a pending lawsuit, or (2) to cancel the contract, by not completing the purchase, on pain of losing the $200 cash payment already made and suffering the lawsuit to take its course. (One judgment is for plaintiffs in an action to compel specific performance of a contract to purchase certain property. The other judgment is for costs.) Present — Sears, P. J., Crosby, Lewis, Cunningham and Taylor, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

256 A.D. 891, 9 N.Y.S.2d 646, 1939 N.Y. App. Div. LEXIS 5263, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mall-v-sloan-nyappdiv-1939.

Opinion

Related

Cite This Page — Counsel Stack