Gershonowitz v. Neider

• Decision Date: 14 February 1924
• Docket Number: No. 54/53.,54/53.
• Citation: 123 A. 530
• Parties: GERSHONOWITZ et al. v. NEIDER et al.
• Court: New Jersey Court of Chancery

123 A. 530

GERSHONOWITZ et al.

v. NEIDER et al.

No. 54/53.

Court of Chancery of New Jersey.

Feb. 14, 1924.

Bill for specific performance by Ike Gershonowitz and another against Nathan Neider and another. Specific performance granted, and defendants' counterclaim dismissed.

Isaac Gross, of Jersey City, for complainants.

Harry B. Dembe, of Bayonne (Thomas J. Brogan, of Jersey City, of counsel), for defendants.

BENTLEY, V. C. This is a bill by a vendor for the specific performance of a contract to convey land.

On November 23, 1922, the parties entered into a contract for the sale of property in the city of Newark, for the sum of $44,000, to be effected on February 1, 1923. Time was not of the essence of the contract. On January 26th, the defendants made objection to the title in a letter which set out a large number of incumbrances and defects. Every incumbrance and defect in the title has been cleared up and was cured not later than May 11, 1923, whereof defendants were notified, and whereupon, on the 14th, the complainant served written notice upon the defendants that they would be ready to convey, on May 24th, at 4 p. m., at the place agreed upon in the contract, and said: "We hereby make said time of the essence of said contract, and demand that you then attend to perform the same on your part."

There was no such attendance, and thereupon, after some further correspondence, this bill was filed on July 6th.

The defense undertaken to be made out is that the contract was repudiated in February, at or about the time for passing title, and that, consequently, the dealings of the parties were at an end. I find, as facts, that all defects in or questions concerning the title have been cured or eliminated. In fact, there seemed to be a tacit agreement on the hearing to that effect, leaving only the question I have just stated.

Every witness produced is vitally interested in the result of this case. On both sides the solicitors of record have testified—not merely as to formal matters, but as to the merits of the question to be decided; and, on the part of the complainant, the solicitor who actually tried the case has given evidence on the disputed facts on the merits. This, as he knows, if the matter had to be decided upon the oral proofs, would place the court in an exceedingly unpleasant position and is a practice condemned in this state. Garrett v. Garrett, 86 N. J. Eq. 293, 98 Atl. 848. It is only fair to say, however, that complainants' counsel was probably surprised at the line of defense adopted at the final hearing, although he did not object to the same, and that he had every reason to believe, as he indicated in his opening, that he would simply have to meet legal questions as to the state of the title at this time. The other witnesses were, respectively, the agent who was interested in the contract being performed, who testified to a very damaging admission by the defendant Neider, and that defendant who took the stand for the single purpose of denying the same. Fortunately, I feel that the documentary evidence is a safe guide, and sufficient for determining the single issue presented.

Following the objections made to the title in the letter referred to above, the defendants' solicitors, on February 14th, notified the complainants' solicitors that they hesitated to guarantee the title, and suggested that if a title company policy of insurance could be procured they would recommend that the defendants complete the contract, and then say:

"In other words, if Gershonowitz Bros. are willing to pay the fee of the title company to guarantee both of these searches to us, we will then close it."

Thereupon, the complainants took up the matter of title insurance with some company and appear to have been able to secure the same. At the same time, and...