Junius Const. Co. v. Cohen

Decision Date17 November 1931
PartiesJUNIUS CONST. CO. v. COHEN.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Action by the Junius Construction Company against Bessie Cohen, individually and as executrix, wherein defendant filed a counterclaim. Judgment for defendant was reversed, and a new trial granted by the Appellate Division (233 App. Div. 684, 249 N. Y. S. 928), and defendant appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, Second Department.

Joseph J. Corn, Jr., of New York City, for appellant.

Joseph Feldman and Louis Rosenberg, both of New York City, for respondent.

CARDOZO, C. J.

Plaintiff and defendant's testator made a contract whereby the one agreed to buy and the other to sell a parcel of land in the borough of Queens, city of New York, bounded on the south by Haverkamp street, on the west by Acton street, and on the east by Weisse avenue. In the list of incumbrances we find the following: ‘Subject to the facts that section 35 of the Final Maps of the Borough of Queens shows a proposed change in the line of Weisse Avenue; if such street is legally opened upon the lines shown by said final maps a portion of said premises fronting on Weisse Avenue will be taken for street purposes; and also subject to the facts that section 35 of the final maps of the Borough of Queens shows a street known as Acton Street running across the northwesterly portion of said premises; if such street is legally opened upon the lines shown by said final maps a portion of said premises will be taken for such street.’

The buyer was thus warned that the opening of streets on the east and west might modify in the future the exterior boundaries, and might affect to that extent the area subject to improvement. What the buyer was not warned of is the fact that on the same map there was another street (Rutledge street), which, if opened, would cut the plot substantially in half. This information the seller withheld.

At the appointed time for closing, the buyer, who had examined the records in the interval, refused to accept a conveyance, taking the ground that the contract had been made with a view to the building of a factory, and that a street bisecting the plot would make the conveyance useless.

This action has been brought to recover the down payment and the title expenses and to declare them liens upon the land. The defendant has counterclaimed for specific performance. There was proof upon the trial that, while the action was pending, a new map had been filed, and that Rutledge street was no longer there.

The trial judge refused to receive testimony as to the purpose of the plaintiff in contracting to buy the land, and as to a charge in its financial position between the rejection of the title and the time of the trial, two years thereafter. The Appellate Division reversed and granted a new trial on the ground that evidence of changed conditions had been erroneously excluded.

We think the plaintiff acted without fault in refusing to accept the conveyance tendered by the seller.

By an amendment adopted in 1926 (Laws 1926, c. 690) there was inserted in the General City Law (Consol. Laws, c. 21) an article, designated 3, covering the subject of official maps and planning boards.

By section 26 of the act, as thus amended, ‘every city by ordinance or resolution of the legislative body which has the authority to lay out, adopt and establish streets, highways and parks may establish an official map or plan of the city showing the streets highways and parks theretofore laid out, adopted and established by law, and such map or plan is to be deemed to be final and conclusive with respect to the location and width of streets and highways and the location of parks shown thereon. Such official map or plan is hereby declared to be established to conserve and promote the public health, safety and general welfare. Said ordinance or resolution shall make it the duty of some appropriate official or employee of said city at once to file with the clerk or register of the county or counties in which said city is situated a certificate showing that the city has established an official map or plan.’

By section 27, the legislative body is empowered to create by resolution or ordinance a planning board of five members to be appointed by the mayor or other duly authorized appointing authority.

By section 29, the legislative body of each city is empowered to change the official map or plan from time to time after a public hearing, but, before making such change, the matter shall be referred to the planning board for report thereon.

By section 35, the Legislature prohibited the construction of a building within the lines of a mapped street except upon a permit to be issued subject to such conditions as the board having jurisdiction of the application might see fit to approve. The section reads as follows: ‘For the purpose of preserving the integrity of such official map or plan no permit shall hereafter be issued for any building in the bed of any street or highway shown or laid out on such map or plan, provided, however, that if the land within such mapped street or highway is not yielding a fair return on its value to the owner, the board of appeals or other similar board in any city which was established such a board having power to make variances or exception in zoning regulations shall have power in a specific case by the vote of a majority of its members to grant a permit for a building in such street or highway which will as little as practicable increase the cost of opening such street or highway, or tend to cause a change of such official map or plan, and such board may impose reasonable requirements as a condition of granting such permit, which requirements shall inure to the benefit of the city. Before taking any action authorized in this section, the board of appeals or similar board shall give a hearing at which parties in interest and others shall have an opportunity to be heard. At least fifteen days notice of the time and place of such hearing shall be published in an official publication of said city or in a newspaper of general circulation therein. ...

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  • W. Pac. Elec. Co. v. Dragados/Flatiron
    • United States
    • U.S. District Court — Eastern District of California
    • April 18, 2021
    ...Servs., Inc. v. United States , 579 U.S. 176, 136 S. Ct. 1989, 2000, 195 L.Ed.2d 348 (2016) (quoting Junius Constr. Co. v. Cohen , 257 N.Y. 393, 400, 178 N.E. 672 (1931) (Cardozo, J.)).46 Information contained in a contract, including incorporated documents such as a construction plan, can ......
  • United States v. Ferriero
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 4, 2017
    ...is selling, but fails to disclose that a third potential road might bisect the property." Id. (citing Junius Constr. Co. v. Cohen, 257 N.Y. 393, 178 N.E. 672, 674 (1931) (Cardozo, J.)). Another example would be a job applicant at a local college listing "retirement" after previous jobs, wit......
  • Copland v. Nathaniel
    • United States
    • New York Supreme Court
    • February 1, 1995
    ... ... to mention a relevant fact to the other party it cannot give only half of the truth, see, Junius Constr. Corp. v. Cohen, 257 N.Y. 393, 400, 178 N.E. 672 (1931) (Cardozo, J.); second, when the ... ...
  • Shanus v. R.L. Americana, LLC
    • United States
    • U.S. District Court — District of New Jersey
    • May 12, 2017
    ...from the need to complete or clarify one party's partial or ambiguous statement, see Brass, 987 F.2d at 150 (citing Junius Constr. Corp. v. Cohen, 257 N.Y. 393, 400 (1931)), or from a fiduciary or confidential relationship between the parties, see id. (citing Allen v. WestPoint-Pepperell, I......
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2 firm's commentaries
  • Omissions Can Amount To Fraud: Duty To Disclose To Avoid Misleading Impressions
    • United States
    • Mondaq United States
    • February 28, 2022
    ...disclosure, if the withheld facts are proven to have been material, would be actionable as fraud (see, Junius Constr. Corp. v Cohen, 257 N.Y. 393, 400; cf., Elghanian v Harvey, 249 AD2d 206). Because a duty to disclose would have arisen from the misleading partial disclosure, it is unnecess......
  • Omissions Can Amount To Fraud: Duty To Disclose To Avoid Misleading Impressions
    • United States
    • Mondaq United States
    • February 28, 2022
    ...disclosure, if the withheld facts are proven to have been material, would be actionable as fraud (see, Junius Constr. Corp. v Cohen, 257 N.Y. 393, 400; cf., Elghanian v Harvey, 249 AD2d 206). Because a duty to disclose would have arisen from the misleading partial disclosure, it is unnecess......
1 books & journal articles
  • Half-truths: protecting mistaken inferences by investors and others.
    • United States
    • Stanford Law Review Vol. 52 No. 1, November 1999
    • November 1, 1999
    ...(19.) See RESTATEMENT (SECOND) OF TORTS [sections] 529 illus. 1 (1977). (20.) The illustration is based on Junius Constr. Co. v. Cohen, 178 N.E. 672, 674 (N.Y. 1931) (Cardozo, J.), which held that a vendor's misrepresentation in failing to warn a purchaser of an unopened street relieved the......

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