Junius Const. Co. v. Cohen
Decision Date | 17 November 1931 |
Parties | JUNIUS CONST. CO. v. COHEN. |
Court | New 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.
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,
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: ...
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...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 ......
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Omissions Can Amount To Fraud: Duty To Disclose To Avoid Misleading Impressions
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Half-truths: protecting mistaken inferences by investors and others.
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