Opinion
March 8, 1971
In an action by vendees for specific performance of a contract for the sale of real property and the construction of a dwelling thereon, plaintiffs appeal from a judgment of the Supreme Court, Suffolk County, dated June 29, 1970, which inter alia dismissed their complaint after a nonjury trial. Judgment reversed, on the law and the facts, with one bill of costs, and case remitted to Special Term for determination of the nature of the relief which should be granted to plaintiffs, upon additional proof if necessary, in accordance with the views hereinbelow set forth. In our opinion, the determination of Special Term dismissing plaintiffs' complaint on the ground that it was impossible to fix blame for nonperformance and that the contract was mutually rescinded is against the weight of the credible evidence. From the testimony adduced at the trial, it is clear that plaintiffs were ready, willing and able to perform pursuant to the terms of the contract, but that defendant C.P. Builders, Inc., through its principals, Cioffi and Pesola, refused to construct the dwelling unless plaintiffs would agree to pay an additional sum of approximately $700 above the contract price of $23,880 because of alleged increased costs C.P. Builders would incur to install a water connection for the subject parcel. This refusal by C.P. Builders constituted a breach of contract entitling plaintiffs to a decision in their favor. The mere fact that performance pursuant to the terms of the agreement obviously became economically unprofitable for C.P. Builders is insufficient reason to relieve it from its contractual obligations ( Cameron-Hawn Realty Co. v. City of Albany, 207 N.Y. 377; cf. City of New York v. Interborough R.T. Co., 136 Misc. 569, affd. 232 App. Div. 233, affd. 257 N.Y. 20). With respect to the mode of plaintiffs' relief, the record indicates that at the trial the parties agreed that, should plaintiffs prevail on the issue as to whether either or both defendants breached the contract, the court would then determine whether to award plaintiffs money damages in lieu of decreeing specific performance. We therefore remit the case to Special Term in order that it determine, upon additional proof if necessary, whether to grant plaintiffs either specific performance or money damages or, if feasible, a combination of both types of relief (cf. Cowan v. Residential Bldrs. of Russell Gardens, 304 N.Y. 852). Since defendant Jaro Construction Corp., which is owned or controlled by the principals of C.P. Builders, Inc., evidently still has title to the subject parcel, and Special Term in its discretion may grant specific performance, we also reverse and remit as to defendant Jaro Construction Corp. Munder, Acting P.J., Martuscello, Latham and Shapiro, JJ., concur; Benjamin, J., dissents and votes to affirm the judgment, with the following memorandum: In my opinion, Special Term's determination was equitable and was amply supported by the evidence. It should also be noted that, at the trial, plaintiffs plainly indicated they were not ready, willing and able to perform pursuant to the terms of the contract (which was for the construction of a residence for them by defendant C.P. Builders), since plaintiff Joseph Schmidt testified that he would not trust that defendant to build a house for him. Nor is there any warrant in this record for the reinstatement of Jaro Construction Corp. as a party defendant, since it was not a party to the contract here sued upon and the dismissal of the complaint as to it was for that reason correct.