Bach v. Kidansky

• Citation: 186 N.Y. 368,78 N.E. 1088
• Parties: BACH et al. v. KIDANSKY et al.
• Decision Date: 13 November 1906
• Court: New York Court of Appeals

186 N.Y. 368

78 N.E. 1088

BACH et al.

v.KIDANSKY et al.

Court of Appeals of New York.

Nov. 13, 1906.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Myer Bach and another against David Kidansky and another. From an order of the Appellate Division, First Department (94 N. Y. Supp. 752), reversing on the law and facts, a judgment dismissing the complaint on the merits, and awarding a new trial, defendants appeal. Affirmed.

VENDOR AND PURCHASER-VENDOR'S LIEN-PAYMENT BY VENDOR.

Where part of the purchase price of land was to be paid by the assumption of mortgages for a certain amount, and the vendor, at the time he executed the conveyance, paid a part of one of the mortgages to secure the release of a collateral mortgage on other land securing the mortgage in question, he was entitled to a vendor's lien for the amount so paid.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, ss 641-650.]

Manfred W. Ehrich, for appellants.

Edward W. S. Johnston, for respondents.

EDWARD T. BARTLETT, J.

This is an action in equity to establish a vendor's lien upon real estate for unpaid purchase money. The plaintiffs agreed to sell to the defendants, and the latter agreed to purchase, improved real estate in the city of New York, known as 321, 323, and 325 Madison street for $101,000. The contract was reduced to writing and duly executed. The terms of payment were $1,500 in cash at time of executing the contract, $6,500 in cash on delivery of the deed, and $93,000 by taking deed of premises subject to four mortgages aggregating that amount, each covering all, or a portion, of said premises. One of these was a third mortgage of $13,000, covering entire premises, secured by a collateral mortgage of like amount on 185 and 187 Allen street in the city of New York. There was a covenant in the $13,000 mortgage that, in case of sale of the mortgaged premises, $3,000 of principal was to become immediately due and payable. The present litigation is due to the transactions relating to this mortgage. The order from which this appeal is taken states that the reversal is on the law and the facts, but an examination of the record shows that no material fact is in dispute. In view of the uncontradicted testimony and the admissions in the answer, there were presented to the Appellate Division questionsof law only, upon undisputed facts, as was stated in the opinion of that learned court.

After the execution of the contract and prior to the law day, the $13,000 mortgage was purchased by Flora Levy, the wife of the defendant Louis J. Levy. It appears that the collateral mortgage on the Allen street property, to which reference has already been made, contained a provision that when $4,000 should have been paid on the principal mortgage covering the Madison street property, the collateral mortgage should be satisfied. The plaintiffs had, after the execution of the contract with defendants, agreed to sell the Allen street property to Weil and Mayer free and clear of all incumbrances. At the time fixed for the closing of the title, November 30, 1903, an adjournment was taken to December 1, 1903, the fact having become known that Flora Levy had purchased the $13,000 mortgage and the collateral mortgage on the Allen street property. It was also agreed that the defendants' counsel should notify Flora Levy to be present at the time and place for closing the title, in order that the plaintiffs might pay to her, either the sum of $4,000, or that the defendants should pay to her the sum of $3,000 and the plaintiffs the sum of $1,000, so as to comply with the conditions of said mortgages, and to obtain a cancellation of the collateral mortgage on the Allen street property. On the 1st of December, 1903, at the time for closing title, Flora Levy did not attend, and, on her behalf, her husband, the defendant Louis J. Levy, refused to accept the sum of $3,000 from the defendants and the sum of $1,000 from the plaintiffs, with interest, and execute a satisfaction or release of the Allen street mortgage, and also execute a writing produced by plaintiff's counsel, subrogating the plaintiffs to an interest of $1,000 in the said $13,000 mortgage. Thereupon the plaintiffs paid to Flora Levy the sum of $1,000 on said mortgage, and she released and canceled the collateral mortgage on the Allen street property. The plaintiffs, upon receiving the final cash payment of $6,500 delivered to the defendants a conveyance of the property,having, as matter of fact, received from them only the sum of $100,000, instead of $101,000 they had covenanted to pay.

On these undisputed facts plaintiffs insist that the sum of $1,000 so paid by them to Flora Levy was under compulsion in order to secure the closing of the...