Harris v. Strodl

• Decision Date: 19 April 1892
• Citation: 132 N.Y. 392,30 N.E. 962
• Parties: HARRIS v. STRODL.
• Court: New York Court of Appeals Court of Appeals

132 N.Y. 392

30 N.E. 962

HARRIS

v.STRODL.

Court of Appeals of New York, Second Division.

April 19, 1892.

Appeal from supreme court, general term, first department.

Action by S. Harris against J. H. Strodl. From a judgment of the general term, affirming a judgment for plaintiff entered at special term, defendant appeals. Affirmed.

F. J. Moissen, for appellant.

David McClure, for respondent.

The other facts fully appear in the following statement by LANDON, J.:

The action was brought for the specific performance of a contract made by the parties February 16, 1888, for the sale by the defendant to the plaintiff of a lot in the city of New York for the price of $24,900 by full covenant deed to be delivered April 15, 1888, conveying to plaintiff title in fee simple, free from incumbrances, except as to outstanding tenancies and a mortgage, not here material. The plaintiff paid $1,000 upon the contract at its date, and necessarily expended $224.10 in examining as to the title, and was ready and willing to perform. The defendant tendered a deed of the premises executed by himself, which plaintiff refused to accept, upon the ground that the deed under which defendant claimed did not convey to him full title, for reasons discussed in the opinion. The complaint asks, in case specific performance could not be made, that he recover the $1,000 advanced by him, and his said expenses. The trial court directed judgment in favor of the plaintiff for said sums with costs. Further facts are stated in the opinion.

LANDON, J., ( after stating the facts.)

John George Vix died in 1874, in the city of New York, seised of the premises in question as owner in fee simple, leaving his widow, Salomea, and his three sons. Jacob, George, and Edward, all of full age, surviving him. He also left a will, which was afterwards duly proved, the material parts of which are as follows: ‘ First. I devise and bequeath unto my beloved wife, Salomea Vix, all of my estate, both real and personal, of which I may be seised at the time of my decease; to have and to hold the same unto her for and during the time of her natural life, or until she shall remarry, to receive the rents, issues, and profits thereof, and apply the same as she shall see fit. Second. Should my said wife marry again after my death, then, and in such case, I do direct that all my said estate, real and personal, be sold by my executors hereinafter named, either at public or private sale, and one third of the proceeds thereof paid to my said wife, and that the remaining two thirds thereof be divided equally between my children, share and share alike; the children of any of my said children who may have died to receive the amount the parent would be entitled to if living. Third. Should my said wife die without marrying again, then, upon her death, I hereby direct thay my said estate shall be divided between them, share and share alike; the children of any deceased child to receive the same proportion the parent would have received if living, the devisees in this clause being my children or the children of any of them who may have died. Fourth. I hereby give unto my said executors full power to sell and convey any and all of my said real estate whenever they may deem it best to do so, and upon such terms as they may think desirable. Lastly. I hereby nominate and appoint my said wife, Salomea, to be executrix, and my friend Michael Schmidt to be executor, of this my last will and testament, hereby revoking all former wills by me made.’ The widow is living, and has not remarried. The three sons are living; Edward and George each have children; Jacob has none. Schmidt, the executor, is also living. February 1, 1886, the said widow and the three sons of the testator, the wife of Edward uniting in the conveyance, conveyed the premises in question to the defendant for the expressed consideration of $19,500. Upon the trial the defendant produced a deed dated February 1, 1886, of the said executors of the will of the testator to the defendant, of the premises. This deed was acknowledged by one executor December...