Gittlitz v. Lewis
| Decision Date | 02 February 1961 |
| Citation | 28 Misc.2d 712,212 N.Y.S.2d 219 |
| Parties | David L. GITTLITZ and Molly R. Gittlitz, Plaintiffs, v. Robert S. LEWIS, Defendant. |
| Court | New York Supreme Court |
Alfred Rubinstein, Hicksville, for plaintiffs.
Campanella & McCaffrey, Plainview, for defendant.
This action for specific performance of a contract for the sale of real property and for money damages was tried by the court without a jury. At the trial both parties stipulated to a judgment granting specific performance, leaving only the question of the plaintiff vendee's right to damages for determination.
A contract of sale in the usual form, executed on December 11, 1959, provided for the delivery of a deed at the office of the defendant vendor's attorney 'on or about January 15/1960'. Plaintiff testified that during discussions at the time of the contract signing, the defendant's attorney stated that he would not consent to a specific closing date or a clause that time was to be of the essence. It appears that the defendant had been negotiating since November of 1959 for a new position which would require him to leave the state and that the date on which he was to assume his new duties was indefinite.
Thereafter, it appears that a closing was arranged for January 14, 1960. Prior to this time some of the plaintiffs' books had been moved into the subject premises with the consent of the defendant. On January 10, 1960, however, the defendant telephoned plaintiff, David L. Gittlitz, and advised him that the closing date would have to be adjourned because of certain delays he had encountered. The plaintiff's version of this telephone conversation is that the defendant told him, Defendant's testimony, on the other hand, is that he merely telephoned to advise plaintiffs that he had encountered some delay in connection with his new employment and the closing date would have to be adjourned. He requested a thirty day postponement, which was refused. On January 16, 1960 (one day after the 'on or about' date), plaintiffs verified the complaint herein which was then served on January 18, 1960.
Plaintiffs' position is that there was an anticipatory breach of the contract on the part of the defendant, as a result of which they are entitled to damages.
Although a party may treat an entire contract as abrogated and sue immediately where there has been an anticipatory breach, the facts warranting such a position must be fully and clearly established. The defendant's renunciation of the contract must be an unqualified and positive refusal to perform and must go to the whole of the contract. Didier...
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...the contract must be an unqualified and positive refusal to perform and must go to the whole of the contract." Gittlitz v. Lewis, 212 N.Y.S.2d 219, 220, 28 Misc.2d 712, 713 (1961). In our view, the letter's terms indicated an unqualified refusal to perform unless payment was made within 30 ......
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