Garcia v. Callender
| Decision Date | 13 January 1891 |
| Parties | GARCIA v. CALLENDER. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, first department.
John J. Weekes, Jr., for appellant.
Henry H. Anderson, for respondent.
The plaintiff brought this action to compel the defendant to specifically perform a covenant contained in a deed of real estate executed by the plaintiff's testator to the defendant's ancestor, or to recover his damages for breach of the covenant. On the 24th of October, 1854, John Garcia, the plaintiff's testator, conveyed to Jane J. Callender, the defendant's mother, in consideration of $12,000, a dwelling-house on Twentieth street, between Fifth and Sixth avenues, in the city of New York. The defendant is in possession of the premises as heir at law of the grantee in this deed. The conveyance contains covenants of seisin and warranty, and then follows the special covenant which gave rise to this action: ‘And the said party of the second part, for herself, her heirs and assigns, doth hereby further covenant and agree to and with the said party of the first part, his executors, administrators, and assigns, that the said party of the first part, his heirs, executors, and administrators, shall at any time have the right of pre-emption of the premises above described, and conveyed to the said party of second part by the party of the first part at and after the same price as the above-mentioned consideration for the conveyance, to-wit, the sum of twelve thousand dollars, ($12,000;) and the said party of the second part, for herself, her heirs, and assigns, doth further covenant and agree to and with the said party of the first part, his executors, administrators, and assigns, that she, the said party of the second part, will not make, or cause to be made, any change or alteration in the exterior appearance of the building now erected on the premises above described that will destroy or alter its present uniform appearance with the buildings adjoining on each side.’
It is alleged in the complaint that the premises are now worth the sum of $35,000, and it is found by the trial court that, before the commencement of this action, the plaintiff tendered to the defendant $12,000 and demanded a conveyance of the same to him, which was refused; also that the defendant had never offered the property for sale; that it was not for sale; and that defendant did not intend to sell it; and that its value was $28,000. No proof was given upon the trial to show what was the purpose of the parties in inserting this peculiar covenant in the deed, and we much therefore give construction to it from the language alone. In Randall v. Sanders, 87 N. Y. 578, it was held that, in a sale and conveyance of lands, it was competent for the grantor and grantee to contract with each other for a resale, but in that case the instrument provided, in terms, for a conveyance of the property, within a period named, and for a specified sum. In this case the right given to the grantor by the words of the covenant is that of ‘pre-emption of the premises' for the price of $12,000, and the question is, what did the parties mean by that term? For this covenant must be construed, like all other contracts, according to the intention of the parties, to be gathered from the language used, and all the surrounding circumstances. Whatever right was given by the covenant was to be exercised ‘at any time,’ and the plaintiff contends that after the lapse of 31 years, when the parties to the deed are both dead, he has the right to tender the $12,000, and compel a conveyance to him, thought the property is concededly worth considerable more than double the sum tendered. If the covenant is fairly susceptible of some other construction than the one urged by the plaintiff, it ought to be given to it. The term ‘pre-emption,’ at...
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Metropolitan Transp. Authority v. Bruken Realty Corp.
...he may meet a third-party offer or buy the property at some other price set by a previously stipulated method (see, Garcia v. Callender, 125 N.Y. 307, 311, 26 N.E. 283; 5A Powell, Real Property p 771[1], at 72-68). Once the owner decides to sell the property, the holder of the preemptive ri......
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Metropolitan Transp. Authority v. Bruken Realty Corp.
...subsequent in relation to pre-emption was not questioned, and it seems to be entirely clear." 6 N.Y. at 490-491. In Garcia v. Callender, 125 N.Y. 307, 26 N.E. 283 (1891) the Court of Appeals held that the pre-emption clause in a deed, unlimited as to time, could not be exercised because the......
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Izzo v. Brooks
...by their agreement of October 25, 1967. Plaintiff claims what was attempted to be granted was a "preemptive right," (Garcia v. Callender, 125 N.Y. 307, 26 N.E. 283), whereas defendant claims she received an "option" to The parties, in their agreement, chose to term such rights, as granted, ......
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Kowalsky v. Familia
...value. With these authorities as a perspective, the court turns to New York law. Cases close on point are scarce. In Garcia v. Callender, 125 N.Y. 307, 26 N.E. 283, in an action for specific performance of a pre-emption covenant in a deed, the court concluded that the covenant ought to be c......