Green-Shrier Co. v. State Realty & Mortg. Co.

• Decision Date: 07 June 1910
• Citation: 92 N.E. 98,199 N.Y. 65
• Parties: GREEN-SHRIER CO. v. STATE REALTY & MORTGAGE CO.
• Court: New York Court of Appeals Court of Appeals

199 N.Y. 65

92 N.E. 98

GREEN-SHRIER CO.

v.STATE REALTY & MORTGAGE CO.

Court of Appeals of New York.

June 7, 1910.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by the Green-Shrier Company against the State Realty & Mortgage Company. From an order of the Appellate Division (129 App. Div. 581,114 N. Y. Supp. 49), reversing a judgment for plaintiff rendered after a trial at the trial term, plaintiff appeals. Order of Appellate Division reversed, and judgment of Trial Term affirmed.

Charles C. Suffren, for appellant.

David B. Ogden, for respondent.

CHASE, J.

On March 1, 1907, the parties to this action entered into a written agreement by which the defendant contracted to sell to the plaintiff 26 lots of land for $39,000, to be paid as in the contract provided. At the time of the execution of the contract, and in pursuance thereof, the plaintiff paid thereon $5,000 in cash. The defendant agreed to deliver a deed to convey the absolute fee of the lots of land therein described free from all incumbrances at its office on or before September 3, 1907, at 12 m., upon receipt of the payments as in the contract provided. Prior to September 3d the plaintiff was informed by the Title Insurance Company of New York, to which it had gone to have it examine the title to the lots and give to it a certificate guaranteeing the same, that some part of the lots was formerly covered by a certain road known as ‘Cowenhoven Lane,’ and that the defendant did not have title to so much of said premises as was so formerly covered by the southerly half of said lane, and because of said alleged defect in the defendant's title the plaintiff refused to accept a deed of said premises and carry out the terms of said contract. At the request of the defendant the time to close the title was severally adjourned from September 3d to September 6th, and from September 6th to September 13th, and from September 13th to September 20th, and from September 20th to September 27th. Each time the plaintiff demanded that the money paid by it should be returned, and each time the defendant requested an adjournment to enable it to satisfy the said title company that no part of said lots was ever covered by the southerly half of said lane.

The doubt existing in regard to the title of some part of the property included within the contract was apparently shared by both the plaintiff and the defendant. The title was dependent not so much as a determination of a question of law as upon the determination of a question of fact, which was whether any part of the southerly half of such old lane was within the bounds of the lands sought to be conveyed. The title company, acting for the plaintiff, insisted that the title was defective, and the Lawyers' Title Insurance Company, a title company acting for the defendant, insisted that the title was not defective. The controversy was primarily between the surveyors employed by the respective title companies. The uncertainty in regard to the title continued on September 27th, and the plaintiff then insisted that the $5,000 paid by it, together with the expense of examining the title, should be returned to it. The defendant, through its officers in charge of the transaction, said that it would return the money but for the fact that the title had been previously examined and insured by the Lawyers' Title & Insurance Company mentioned, and that if it did return the money without consulting it the defendant could not hold such title company responsible under their contract with it. The representative of the plaintiff then stated that the only adjournment that the plaintiff would consent to granting was one as stated in a memorandum which was then dictated and written, and which was signed by the plaintiff and the defendant in their corporate names, respectively, of which the following is a copy: ‘The time for closing title to the premises in the within contract is hereby adjourned to October 24, 1907, at 1 o'clock p. m., at the office of State Realty & Mortgage Company, 11 Pine street, New York City, closing to be as of October 24, 1907. In the event, however, title to said premises will not be insured by the Title Insurance Company of New York, then in the event the deposit paid hereon, together with interest thereon from date of payment of same at the rate of 6 per cent. to October 24, 1907, be paid the vendee, together with any costs of the Title Insurance Company of New York for the examination of the title and making survey.’ On October 24th the Title Insurance Company of New York would not insure the title of the property sought to be conveyed. This action was then...