Schnurer v. Birbock Savings & Loan Co. of America

Appellate Terms of the Supreme Court of New York

Schnurer v. Birbock Savings & Loan Co. of America

46 Misc. 263, 91 N.Y.S. 742

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 15, 1905

StatusPublished

This text of 46 Misc. 263 (Schnurer v. Birbock Savings & Loan Co. of America) 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

Schnurer v. Birbock Savings & Loan Co. of America, 46 Misc. 263, 91 N.Y.S. 742 (N.Y. Ct. App. 1905).

Pincite

Opinion

Scott, J.

The defendant entered into a written contract of sale of real property to one Adlerman, who afterward, [264]*264with defendant’s consent, assigned the contract to plaintiff. On signing the contract $250' was paid to defendant and it was provided that on the delivery of the deed the purchaser should pay $550 in cash and execute and deliver a purchase-money mortgage for $2,800. The contract provided that the deed should he delivered at the office of defendant, Ho. 8 Bible House, in the city of Hew York. Several adjournments were made of the time of closing title, but no change was made as to the place at which the deed should be delivered. At the appointed time and place the plaintiff appeared prepared to complete the contract and tendered the amount of the cash payment required and a properly executed bond and mortgage for the sum specified in the contract. After defendant’s representative had made one or two frivolous objections to the mortgage, which do not require consideration here, it appeared that the only deed the defendant had caused to be prepared was made out to Adlerman, the original purchaser, although defendant had had timely notice of the assignment of the contract. There was no officer of defendant within reach to execute another deed or to authorize an alteration in the deed already executed. The defendant’s representative, however, with somewhat liberal views as to the power of an attorney employed to supervise the conveyance of title to real estate, offered to alter the already executed deed by erasing Adlerman’s name and substituting that of plaintiff. He then, however, refused to deliver the deed at all, insisting that it should be retained by him, the purchase money and the mortgage being delivered to him upon his promise to record the deed -and mortgage the next morning. The purchaser, not unnaturally, insisted that the deed be delivered to him, as provided by the contract, and upon defendant’s refusal to make delivery brought this action for the amount of his deposit and damages. The defendant stands upon its refusal to deliver the deed, except by depositing it with the register for record. This position is clearly untenable. The plaintiff had done everything which the contract required him to do, and was entitled to a delivery of the deed. The contract provided that defendant would deliver a deed to plaintiff, being the assignee of the original' contractor, and that_ such deed should be delivered [265]*265at defendant’s office. Without the delivery of the deed, in some form, to the purchaser, no title would pass. If the defendant had desired that the deed should be delivered at the register’s office the contract should have so provided. The reasons given for refusing to deliver the deed according to the terms of the contract are as unsubstantial as the refusal is untenable, and judgment should have gone for.plaintiff.

MacLean and Davis, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

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Scott, J.

The defendant entered into a written contract of sale of real property to one Adlerman, who afterward, [264]*264with defendant’s consent, assigned the contract to plaintiff. On signing the contract $250' was paid to defendant and it was provided that on the delivery of the deed the purchaser should pay $550 in cash and execute and deliver a purchase-money mortgage for $2,800. The contract provided that the deed should he delivered at the office of defendant, Ho. 8 Bible House, in the city of Hew York. Several adjournments were made of the time of closing title, but no change was made as to the place at which the deed should be delivered. At the appointed time and place the plaintiff appeared prepared to complete the contract and tendered the amount of the cash payment required and a properly executed bond and mortgage for the sum specified in the contract. After defendant’s representative had made one or two frivolous objections to the mortgage, which do not require consideration here, it appeared that the only deed the defendant had caused to be prepared was made out to Adlerman, the original purchaser, although defendant had had timely notice of the assignment of the contract. There was no officer of defendant within reach to execute another deed or to authorize an alteration in the deed already executed. The defendant’s representative, however, with somewhat liberal views as to the power of an attorney employed to supervise the conveyance of title to real estate, offered to alter the already executed deed by erasing Adlerman’s name and substituting that of plaintiff. He then, however, refused to deliver the deed at all, insisting that it should be retained by him, the purchase money and the mortgage being delivered to him upon his promise to record the deed -and mortgage the next morning. The purchaser, not unnaturally, insisted that the deed be delivered to him, as provided by the contract, and upon defendant’s refusal to make delivery brought this action for the amount of his deposit and damages. The defendant stands upon its refusal to deliver the deed, except by depositing it with the register for record. This position is clearly untenable. The plaintiff had done everything which the contract required him to do, and was entitled to a delivery of the deed. The contract provided that defendant would deliver a deed to plaintiff, being the assignee of the original' contractor, and that_ such deed should be delivered [265]*265at defendant’s office. Without the delivery of the deed, in some form, to the purchaser, no title would pass. If the defendant had desired that the deed should be delivered at the register’s office the contract should have so provided. The reasons given for refusing to deliver the deed according to the terms of the contract are as unsubstantial as the refusal is untenable, and judgment should have gone for.plaintiff.

MacLean and Davis, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

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Bluebook (online)

46 Misc. 263, 91 N.Y.S. 742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schnurer-v-birbock-savings-loan-co-of-america-nyappterm-1905.