Moskowitz v. Schwartz

Appellate Terms of the Supreme Court of New York

Moskowitz v. Schwartz

126 N.Y.S. 632

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 5, 1911

StatusPublished

Cited by1 cases

This text of 126 N.Y.S. 632 (Moskowitz v. Schwartz) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Moskowitz v. Schwartz, 126 N.Y.S. 632 (N.Y. Ct. App. 1911).

Pincite

Opinion

GIEGERICH, J.

The plaintiffs agreed to purchase from the defendant a bakery for the sum of $2,700. They paid to the defendant. $100 at the time the contract of sale was made, but subsequently re[633]*633fused to complete the purchase. This action is now brought by the plaintiffs to recover back the $100. Upon the trial the defendant claimed that he had paid $25 for legal expenses,' and had also paid a broker’s commission of $75. The character of the testimony w.as such that there was good ground for the trial justice to believe that the $75 had not been paid, and he manifestly took this view of the evidence, because he rendered judgment for $75 damages.

The plaintiffs seek to bring this case under the principle of cases like Chaude v. Shepard, 122 N. Y. 397, 25 N. E. 358, which hold that where a tenant makes a deposit as security for the performance on his part of his covenants under the lease, and defaults, the landlord is entitled to retain only the amount of the damages he has sustained, and must return the balance to the tenant. The present case falls rather within the rule of Lawrence v. Miller, 86 N. Y. 131, that a-partial payment made by a purchaser cannot be recovered back by him, if he defaults in his contract to take the property purchased. This rule has been frequently applied by the courts of this state in instances where partial payments have been made on account of the purchase price; one of the most recent of such applications being Beveridge v. West Side Construction Co., 130 App. Div. 139, 114 N. Y. Supp. 521.

1In this case, therefore, if the plaintiffs were not in default under their agreement to purchase, they are entitled to recover back the entire amount paid by them; while, if they were in default, they are not entitled to recover anything. The trial justice evidently proceeded on an erroneous theory of law.

The judgment must therefore be reversed, and a new trial ordered, with costs to appellant, to abide the event. All concur.

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

GIEGERICH, J.

The plaintiffs agreed to purchase from the defendant a bakery for the sum of $2,700. They paid to the defendant. $100 at the time the contract of sale was made, but subsequently re[633]*633fused to complete the purchase. This action is now brought by the plaintiffs to recover back the $100. Upon the trial the defendant claimed that he had paid $25 for legal expenses,' and had also paid a broker’s commission of $75. The character of the testimony w.as such that there was good ground for the trial justice to believe that the $75 had not been paid, and he manifestly took this view of the evidence, because he rendered judgment for $75 damages.

The plaintiffs seek to bring this case under the principle of cases like Chaude v. Shepard, 122 N. Y. 397, 25 N. E. 358, which hold that where a tenant makes a deposit as security for the performance on his part of his covenants under the lease, and defaults, the landlord is entitled to retain only the amount of the damages he has sustained, and must return the balance to the tenant. The present case falls rather within the rule of Lawrence v. Miller, 86 N. Y. 131, that a-partial payment made by a purchaser cannot be recovered back by him, if he defaults in his contract to take the property purchased. This rule has been frequently applied by the courts of this state in instances where partial payments have been made on account of the purchase price; one of the most recent of such applications being Beveridge v. West Side Construction Co., 130 App. Div. 139, 114 N. Y. Supp. 521.

1In this case, therefore, if the plaintiffs were not in default under their agreement to purchase, they are entitled to recover back the entire amount paid by them; while, if they were in default, they are not entitled to recover anything. The trial justice evidently proceeded on an erroneous theory of law.

The judgment must therefore be reversed, and a new trial ordered, with costs to appellant, to abide the event. All concur.

Cite This Page — Counsel Stack

Bluebook (online)

126 N.Y.S. 632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moskowitz-v-schwartz-nyappterm-1911.

Opinion

Related

Cite This Page — Counsel Stack