McFadden v. Block

29 Misc. 398, 60 N.Y.S. 547

Opinion

McAdam, J.

The defendants, as vendees of the realty, having authorized the continuance in their name of the equity suit brought by the present plaintiff, the vendor, against the Manhattan Railway, for fee and rental damages, and having permitted the plaintiff and her attorneys to. proceed with and try the same and incur expense in its prosecution, after the expiration of the five years-mentioned in the contract, cannot now mend their hold to her prejudice. The defendants treated the contract as a continuing one (3 Add. Cont. Am. Notes by Abbott & Wood, 1193; Smith v. Gugerty, 4 Barb. 621), allowed the plaintiff to act on that assumption, and now that the prosecution has terminated favorably cannot avail themselves of the five-year limitation contained in the contract, and by so doing deprive the plaintiff of the recovery which was intended for her benefit by the terms of said contract, which accompanied the sale and formed part of its consideration. The defendants, by refusing to execute the release to the railway company of the easements of light, air and access, prevented the plaintiff from receiving the sum awarded therefor and damnified her to that extent There must be judgment for the plaintiff. 1

Judgment for plaintiff.