Marino v. Nolan

Appellate Division of the Supreme Court of New York

Marino v. Nolan

29 A.D.2d 541, 285 N.Y.S.2d 221, 1967 N.Y. App. Div. LEXIS 2875

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

DecidedDecember 4, 1967

StatusPublished

Cited by3 cases

This text of 29 A.D.2d 541 (Marino v. Nolan) 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

Marino v. Nolan, 29 A.D.2d 541, 285 N.Y.S.2d 221, 1967 N.Y. App. Div. LEXIS 2875 (N.Y. Ct. App. 1967).

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Opinion

— Appeal by defendants from an order of the Supreme Court, Nassau County, dated June 16, 1967, which granted plaintiff’s motion to clarify the judgment of specific performance in this action, entered on August 24, 1965. (The judgment was theretofore affirmed [Marino v. Nolan, 24 A D 2d 1005, affd. 18 N Y 2d 627].) Order modified, on the law, so as to provide that the contract dated January 12, 1965 is to be specifically performed by defendants on December 26, 1967, that the term of the bond and mortgage shall be 25 years from said date and that the adjustments of real estate taxes and fire insurance premiums are to be made as of said date. As so modified, order affirmed, without costs. No questions of fact were considered on this appeal. The amendments to the judgment effectuated by the order under review having to do with the self-amortization provisions of the bond and mortgage and the manner of payment of real estate taxes and insurance premiums did not affect any substantial rights of defendants (CPLR 5019, subd. [a]). The amendments merely rectified the omission of a right to which plaintiff was entitled as a matter of course and did not change or alter a decision which had been made on the merits (cf. Herpe V. Herpe, 225 N. Y. 323, 327; Bohlen v. Metropolitan El. Ry. Go., 121 N. Y. 546, 550-551): The adjustments should not 'be computed as of August 12, 1966. Defendants properly refused the tender of a deed by plaintiff on that date. The deed properly contained a clause subjecting it to all covenants, restrictions and utility easements of record which did not prohibit the erection and maintenance of the improvement. However, in the preceding clause, plaintiff sought to reserve to himself the right to encumber the land in futuro with easements and rights of way. The insertion of this clause was improper as it was not authorized by either the contract of sale or the judgment. Brennan, ■Acting P. J., Rabin, Hopkins, Benjamin and Munder, JJ., concur.

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— Appeal by defendants from an order of the Supreme Court, Nassau County, dated June 16, 1967, which granted plaintiff’s motion to clarify the judgment of specific performance in this action, entered on August 24, 1965. (The judgment was theretofore affirmed [Marino v. Nolan, 24 A D 2d 1005, affd. 18 N Y 2d 627].) Order modified, on the law, so as to provide that the contract dated January 12, 1965 is to be specifically performed by defendants on December 26, 1967, that the term of the bond and mortgage shall be 25 years from said date and that the adjustments of real estate taxes and fire insurance premiums are to be made as of said date. As so modified, order affirmed, without costs. No questions of fact were considered on this appeal. The amendments to the judgment effectuated by the order under review having to do with the self-amortization provisions of the bond and mortgage and the manner of payment of real estate taxes and insurance premiums did not affect any substantial rights of defendants (CPLR 5019, subd. [a]). The amendments merely rectified the omission of a right to which plaintiff was entitled as a matter of course and did not change or alter a decision which had been made on the merits (cf. Herpe V. Herpe, 225 N. Y. 323, 327; Bohlen v. Metropolitan El. Ry. Go., 121 N. Y. 546, 550-551): The adjustments should not 'be computed as of August 12, 1966. Defendants properly refused the tender of a deed by plaintiff on that date. The deed properly contained a clause subjecting it to all covenants, restrictions and utility easements of record which did not prohibit the erection and maintenance of the improvement. However, in the preceding clause, plaintiff sought to reserve to himself the right to encumber the land in futuro with easements and rights of way. The insertion of this clause was improper as it was not authorized by either the contract of sale or the judgment. Brennan, ■Acting P. J., Rabin, Hopkins, Benjamin and Munder, JJ., concur.

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Bluebook (online)

29 A.D.2d 541, 285 N.Y.S.2d 221, 1967 N.Y. App. Div. LEXIS 2875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marino-v-nolan-nyappdiv-1967.

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