Elterman v. Hyman

• Citation: 84 N.E. 937,192 N.Y. 113
• Parties: ELTERMAN v. HYMAN.
• Decision Date: 19 May 1908
• Court: New York Court of Appeals

192 N.Y. 113

84 N.E. 937

ELTERMAN

v.HYMAN.

Court of Appeals of New York.

May 19, 1908.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Abraham Elterman against Jacob Hyman. From a judgment of the Appellate Division (117 App. Div. 519,102 N. Y. Supp. 613) affirming a judgment for defendant on findings upon trial by the court, plaintiff appeals. Reversed.

See 81 N. E. 1163.

This action was brought to recover the amount paid upon a contract for the purchase of land, as well as the amount incurred for expenses in examining the title and to establish and enforce a lien therefor, upon the ground that the plaintiff was ready and willing to perform, while the defendant was not, because the title was unmarketable. The answer admitted the contract and the payment made thereon, but denied the remaining allegations of the complaint. It alleged facts constituting a counterclaim, and asked that the plaintiff be adjudged to specifically perform by paying the balance of the purchase price. By a contract, dated November 9, 1904, the plaintiff agreed to purchase and the defendant to convey two adjoining parcels of land situate in the borough of Manhattan. The purchase price was $31,750, of which $1,500 was paid down and the balance was to be paid partly in cash and partly by taking the property subject to certain mortgages. One of the mortgages was described in the contract as for $10,000 in amount ‘due on or about December 17th, 1906, or on thirty days' notice after the first year, said mortgage bearing interest at the rate of five per cent. per annum, containing the usual clauses, also a mortgage tax clause.’ Three other mortgages were specified, two of which were described as containing ‘the usual clauses,’ and a third as containing ‘the usual second mortgage clause.’ The transaction was to be closed on the 9th of January, 1905, when payment was to be made by the plaintiff and a deed delivered to him by the defendant ‘containing a general warranty with the usual full covenants for the conveying and assuring’ to the purchaser, ‘the fee simple of said premises free from all incumbrances, except as aforesaid.’

Among the findings of fact which appear in the judgment roll the trial court found ‘that the defendant was on the 9th day of January, 1905, the date mentioned in the said contract for closing, ready, willing and able to convey a good and marketable title to the premises above described, as provided for by the terms of the contract for the sale of the said property made and entered into by and between the plaintiff and defendant; * * * that the mortgages of record upon said property and the mortgages made and tendered at the time of closing were ordinary in form and contained no unusual burdensome clauses; * * * that at the same time and place defendant and his vendors agreed and offered to allow plaintiff out of the purchase money a sum sufficient to cover and pay all taxes and assessments unsatisfied of record against said premises, but that the plaintiff refused to pay the balance of the purchase price as provided for in said contract.’

In passing upon certain requests to find presented by the plaintiff, the trial court found that on the law day the defendant ‘did not present any proof that the six items of unpaid assessments amounting to $133.08 had been paid or discharged; * * * that no offer was made by the defendant or his attorneys on his behalf to allow out of the purchase money the amount of such unpaid assessments so aggregating $133.08, or to deposit the amount thereof with the defendant (plaintiff) or with any person or corporation satisfactory to him to abide the production of proof of the payment thereof, and no request was made by the defendant or his attorneys of the plaintiff or his attorneys for any adjournment of the closing; * * * that there never was any $10,000 mortgage covering the first parcel of the property described in the contract * * * due on or about December 17, 1906, or on 30 days' notice after the first year, containing the usual clauses and also a mortgage tax clause, on the contrary, there were two mortgages of $5,000 each, each covering one-half of the parcel, and each mortgage due on December 29, 1907, or on 60 days' notice after the first year, and each mortgage contained clauses assigning the rents of the property on default of any of the covenants in the bond accompanying the mortgage, and that each mortgage should be due and payable on the actual or threatened demolition of any building that might be erected on the premises, and should be due in case of the failure of the owner to certify to the mortgagee the amount due on the said mortgages 30 days after the mailing of a notice, or six days after personal notice requiring such certificate, to such owner; that the clauses in the said two $5,000 mortgages * * * that the mortgages should be due in case of the failure of the owner of the property to certify to the mortgagee the amount due on said mortgages 30 days after the mailing of a notice, or 6 days after personal notice requiring such certificate to such owner, are unusual clauses in a mortgage; * * * that on the said 9th day of January, 1905, * * * there was presented to the attorneys for the plaintiff proof satisfactory to them that all the taxes that were on the premises had been paid, but there was not presented to them any proof that six different assessments, aggregating the sum of $133.08, had been paid, and those six assessments so aggregating $133.08 were not paid on the said 9th day of January, 1905, and four of those assessments aggregating the sum of $67.87 were not paid until January 14, 1905, and two of those assessments aggregating $65.18 still remain unpaid and are still liens on the premises.’

The trial court found as conclusions of law ‘that the title to the premises in question was good and marketable at the time originally designated for the closing of the title in the contract of sale, to wit, January 9, 1905; that the defendant on the said 9th day of January, 1905, could have conveyed and was in a position to convey to the plaintiff a good and marketable title to said premises in accordance with the terms of the contract; that the plaintiff was bound and obliged to take title from the defendant and accept the deed of the premises offered and tendered to him on the said 9th day of January, 1905; that the defendant is entitled to judgment dismissing the complaint on the merits, with costs.’

The judgment entered accordingly was unanimously affirmed by the Appellate Division, and the plaintiff appealed to this court.

Willard Bartlett, J., dissenting.Edward W. S. Johnston, for appellant.

Isidor Wasservogel, for respondent.

VANN, J. (after stating the facts as above).

The learned Appellate Division ignored the inconsistencies between the facts found at the request of the plaintiff and those appearing in the decision directing judgment, upon the ground that no fact found, unless it appears in the formal decision, ‘forms any part of the judgment roll, or can be considered for any purpose by the appellate court.’ Elterman v. Hyman, 117 App. Div. 519,102 N. Y. Supp. 613. Since that decision was made we have held otherwise, and the practice must now be regarded as settled that the facts found upon request, whether incorporated in the decision proper or not, are for the consideration of the appellate courts, to enable them in reviewing a case to apply the proper principles of law. Bremer v. Manhattan Ry. Co., 191 N. Y. 333, 339,84 N. E. 59. When findings are so inconsistent that it is impossible to harmonize them, ‘it is the duty of the court to accept those most favorable to the appellant, as he is entitled to rely upon them in aid of his exceptions.’ Israel v. Manhattan Ry. Co., 158 N. Y. 624, 631,53 N. E. 517;City of Buffalo v. D., L. & W. R. R. Co., 190 N. Y. 84, 98,82 N. E. 513. The trial court found both ways upon several material questions of fact. The conflict, when resolved in favor of the appellant, leaves the premises subject to the lien of unpaid assessments, with no offer to credit the amount thereof upon the purchase price, or request for an adjournment to enable the vendor to procure a discharge of the lien.

According to the contract, the existing mortgages, which were to remain upon the premises, contained the ‘usual clauses,’ and this specific mention impliedly excludes unusual clauses, yet according to the findings, when read in the light of the rule giving the appellant the benefit of those most favorable to his interests, one clause, at least, was found unusual as matter of fact, and we think two others were unusual as matter of law. The clause assigning rents on the breach of any covenant in the bond, if not entirely unprecedented, is certainly unusual. The same is true of the clause making the mortgage due on the actual or threatened demolition of any building on the premises. The mysterious clause requiring the owner to certify to the mortgagee the amount due on the mortgage within a specified time after notice, either personal or by mail, is not only unusual, but oppressive, for it might deprive the mortgagor of his land, or at least put him to great trouble and expense, owing to his absence from home or the miscarriage of a letter. It is clear, therefore, that the facts found do not support the conclusion of law that the defendant ‘was in a position to convey to the plaintiff a good and marketable title to said premises in accordance with the terms of said contract.’

The question remains whether a vendee, not in possession and with no special equity, has a lien for the amount paid on a contract for the purchase of land that can be foreclosed upon the default of the vendor. The Appellate Division in the First Department, after thorough discussion, two elaborate opinions having been written, one on either side, has held that a lien exists for the amount paid on the contract, but not for the...