Greene v. Barrett, Nephews & Co.
| Decision Date | 13 May 1924 |
| Citation | 144 N.E. 503,238 N.Y. 207 |
| Parties | GREENE v. BARRETT, NEPHEWS & CO., (OLD STATEN ISLAND DYEING ESTABLISHMENT) et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Samuel Greene against Barrett, Nephews and Company (Old Staten Island Dyeing Establishment) and others. From a judgment of the Appellate Division of the Supreme Court (206 App. Div. 400,201 N. Y. Supp. 496) reversing on the law and the facts a judgment of the Special Term (119 Misc. Rep. 223,196 N. Y. Supp. 244) in favor of the plaintiff and dismissing complaint, plaintiff appeals.
Judgment reversed, and judgment entered for plaintiff.Appeal from Supreme Court, Appellate Division, Second Department.
Samuel Seabury, Maxwell C. Katz and Otto C. Sommerich, all of New York City, for appellant.
Alfred T. Davison, of New York City, and James K. Foster, of Brooklyn, for respondents.
[1] We have first to determine the nature of this action. Is it one for damages for a breach of contract or is it one where because of the failure of the defendant to fulfill its obligations the plaintiff seeks to recover payments advanced in the expectation that these obligations would be performed and to impress a lien on the subject-matter of the contract to secure such recovery? This distinction is here fundamental, for if the action is for damages the plaintiff failed to show as he must that he himself has done what he was required to do.
[2][3] The controversy relates to a written agreement for the purchase and sale of the defendant's business with its good will, real estate and assets of every nature. On account of the purchase price the complaint alleges the plaintiff paid $40,000. On the day fixed for closing the transaction, however, the defendant was unable and still is unable to deliver a marketable title to the property which the plaintiff had agreed to buy. But it is also alleged that the plaintiff was entitled to a credit of $10,000, money which he had paid on a former transaction, that he paid $6,000 as counsel fees in connection with this matter, and incurred expenses amounting to $1,125.55 in searching the title, and he asks judgment not for $40,000, but for $57,122.55, and further, that such amount be declared a lien on the premises covered by the contract. He also alleges that at the time fixed he was able, ready and willing to complete the same and that he tendered to the defendant the balance due thereon. At the best the complaint is ambiguous, but however ambiguous, there can be no dispute as to the theory upon which the case was tried. In opening, the counsel for the plaintiff said that this was ‘an action to recover the earnest moneys paid on account of a contract of purchase and sale,’ and for the declaration of a vendee's lien on the defendant's plant. He further expressly claimed he was not suing for damages and, therefore, no proof of tender of the balance of the purchase price was necessary. Not only did this evoke no criticism by the defendant, but it seems to have assented to the statement, for during the trial the claims for $1,125.55 and for $6,000 were withdrawn, the former under the objection of the defendant that this being an action to impress a lien the item was improper. In the affidavits used on a motion for an extra allowance both parties agreed that the action was ‘to enforce a lien for contracts alleged to have been made on account of the purchase price.’ Such was the understanding of the trial judge. It is now too late to claim that in fact this was an action for damages. The trial judge was clearly in error when he allowed a recovery for the $10,000 to be credited to the plaintiff, instead of restricting such recovery to $40,000. But he considered the $10,000 as cash paid in advance.
[4] If this be the nature of the action under the circumstances as developed it was not necessary for the plaintiff to show that on the closing day he was able, ready and willing to complete the contract or that he made any tender to the defendant or any demand upon it. Giving certain dicta (Ziehen v. Smith, 148 N. Y. 558, 42 N. E. 1080;Higgins v. Eagleton, 155 N. Y. 466, 50 N. E. 287), that the mere existence on the closing day of an incumbrance on the property to be conveyed which it is in the power of the vendor to remove does not excuse tender and demand, their fullest effect; assuming that statement is applicable to a contract of sale relating but in part to real estate, where the alleged defect relates to personalty, we cannot say that where a lease, which...
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In Re Ilana Realty, Inc.
...York law, where the seller is unable to deliver marketable title, the purchaser need not tender payment. See Greene v. Barrett, Nephews & Co., 238 N.Y. 207, 144 N.E. 503 (1924); Cohen v. Kranz, 12 N.Y.2d 242, 246-27, 238 N.Y.S.2d 928, 189 N.E.2d 473 As all sides recognized during the advers......
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Oxford Funding Corp. v. James H. Northrup, Inc.
...a showing of tender or even of willingness and ability to perform where the vendor's title is incurably defective (Greene v. Barrett, Nephews & Co., 238 N.Y. 207 ), a tender and demand are required to put the vendor in default where his title could be cleared without difficulty in a reasona......
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...Administrator an opportunity to cure ( seeCohen v. Kranz, 12 N.Y.2d 242, 246, 238 N.Y.S.2d 928, 189 N.E.2d 473; Greene v. Barrett, Nephews & Co., 238 N.Y. 207, 144 N.E. 503; Spivak v. Farkas, 217 A.D.2d 430, 629 N.Y.S.2d 45). The parties' remaining contentions either are academic inlight of......
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