Opinion
December 30, 1908.
Louis J. Altkrug, for the appellants.
Harry Zirn, for the respondent.
The action is to recover a deposit on a contract to purchase realty with improvements to be erected thereon, and the expenses for examination of the title. The defendants appeal from a judgment for the plaintiff entered upon a verdict directed by the court at the close of the case. The contract executed on April 23, 1906, named March 1, 1907, for performance. There was not performance on that day. The plaintiff on that day raised certain objections to the title, then tendered the money called for by the contract and demanded a deed. The contract provided that the realty should be conveyed subject to certain mortgages to run for a period of not less than 2½ years from the date of closing title. But it appeared that certain of these mortgages, which were made subsequent to the execution of the contract, contained provisions that in the event of the passage of any law by the State deducting from the value of land for the purposes of taxation any lien thereon, or changing in any way the laws for the taxation of mortgages or mortgage debts for State or local purposes, or the manner of the collection of any such taxes so as to affect the mortgage, the holder of the mortgage and the debt which it secured should have the right to give 30 days' written notice to the owner of the said land requiring the payment of the mortgage, which in that event should become due, payable and collectible at the expiration of the said 30 days. The contract between the parties contains no provision that the mortgages described therein might contain any such or similar clause. I think, then, that the plaintiff was justified in refusing to take the premises subject to mortgages which contained this provision, which in a contingency, neither remote nor bare (in view of the agitation of such legislation and action towards it), might make the mortgages due within a period much less than that stipulated for by the parties in their contract. ( Oppenheim v. McGovern, 115 App. Div. 135; affd., 189 N.Y. 572.) A deed was offered to the plaintiff at the time appointed for the closing of the title, and the purchaser was entitled then to make his objections thereto. (Maupin Real Estate [2d ed.], § 43, and authorities cited.) The contention of the appellants is that time was not the essence of the contract; that on the law day the vendors asked and should have received a reasonable time to obtain a release of the mortgage clauses in question, which they could have obtained. But this is an action at law, and the stipulated time for the performance of such a contract is of the essence thereof. ( Schmidt v. Reed, 132 N.Y. 108, 113; Oppenheimer v. Humphreys, 9 N.Y. Supp. 840; affd. on opinion below, 125 N.Y. 733.)
The action was begun in March, 1907. The defendants demanded a decree for specific performance. The learned trial court decided that the defendants waived their demand for equitable relief because they served a cross-notice of trial for the Trial Term; and because they had conveyed the premises subsequent to their contract with the plaintiff. I think that the court may be sustained in this disposition of the counterclaim, in view of the proof that the defendants had conveyed the premises to those who were for aught that appeared innocent and bona fide purchasers. By this act the defendants either made specific performance on their part impossible (Pom. Spec. Perf. § 466) or dependent on the mood of the defendants' grantees, which is not sufficient to move the court. ( Hinckley v. Smith, 51 N.Y. 25.) The defendants, by their said cross-notice, waived any right to trial in any other forum than that of Trial Term. ( Tubbs v. Embree, 89 Hun, 475; Jacob v. Thompson, 80 App. Div. 526.)
The judgment and order are affirmed, with costs.
WOODWARD, HOOKER, RICH and MILLER, JJ., concurred.
Judgment and order affirmed, with costs.