Metz v. Harbor & Suburban Building & Savings Ass'n

117 A.D. 825, 102 N.Y.S. 980, 1907 N.Y. App. Div. LEXIS 353

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 1, 1907
• Status: Published

Opinion

Gaynor, J.:

The learned trial court in .decreeing specific performance only allowed the plaintiff on account of the purchase price the $50 paid-on delivery of the contract,, and this is why the plaintiff appeals. The judgment is correct, for the contract, when delivered gave notice to- the plaintiff that the' agent had no authority to collect the monthly installments. The defendant never waived this, ' Instead of returning-to the-defendant the duplicate gf the contract signed' . by the purchaser, the agent kept it without authority and collected and embezzled 28 installments in addition toz-the $50 paid dli the delivery. Besides, there wás no evidence of knowledge in the pur chaser that the agent had possession of the defendant’s duplicate when he collected the installments (Crane v. Gruenewald, 120 N. Y. 274).

The judgment, should be affirmed.

. Jeuks, Hooker, Rich and Miller, JJ., concurred.

Interlocutory judgment affirmed, with costs.