Opinion
January, 1928
Judgment reversed upon the law and the facts, with costs, and judgment directed for plaintiff, as prayed for in the complaint, with costs. It appears conclusively from the evidence that plaintiff did not agree with either defendant upon terms for the purchase of the premises described in the complaint. Respondent Schiffmacher was the owner and respondent Weil held a three-year lease, with an option to purchase. The appellant paid her money to respondent Weil. If the parties came to terms, Mrs. Weil was to take a conveyance from Schiffmacher, and then contract with appellant for a sale to her. The receipt given to appellant provides that "terms and full details of property to be given in the contract." The testimony of Belle R. Matthews, Schiffmacher's agent, is conclusive that in the transactions she recognized Mrs. Weil as the prospective purchaser, and was unable, notwithstanding the claimed option, to give, even to Mrs. Weil, full and complete terms upon which the property could be purchased. The contract tendered by respondent Schiffmacher contained terms and conditions not discussed with appellant, including the clause making the sale subject to the three-year lease of respondent Weil, notwithstanding the fact that appellant required immediate possession. Under the circumstances here disclosed, motive for not continuing negotiations was immaterial. (See Cohn v. Smarr, 214 App. Div. 589.) Lazansky, P.J., Rich, Young, Kapper and Hagarty, JJ., concur.