Schwartz v. Donnenberg
| Decision Date | 23 September 1957 |
| Citation | 10 Misc.2d 490,168 N.Y.S.2d 31 |
| Parties | Herbert T. SCHWARTZ and Isabelle Schwartz, Plaintiffs, v. Leon DONNENBERG and Edith Donnenberg, Defendants. |
| Court | New York Supreme Court |
Edward M. Miller, Levittown, for plaintiffs.
Berman & Tomaselli, Freeport, for defendants.
In this action for specific performance of a contract to sell real property, plaintiffs seek summary judgment. Plaintiffs entered into an agreement to purchase a house owned by defendants. The contract was made conditional upon the plaintiffs obtaining an F. H. A. mortgage. Plaintiffs were given 45 days in which to obtain all approvals necessary to obtain the mortgage and were to notify defendants to that effect within said 45 days; upon their failure to give such notice within the prescribed time defendants were given the sole option of cancelling the contract and returning the down payment.
Plaintiffs thereupon proceeded to arrange for the mortgage loan and obtained a temporary commitment from a lending institution subject to F. H. A. approval; this was obtained on May 6, 1957, the contract having been signed on April 19, 1957. On May 22, 1957, the F. H. A. sent out a notice advising plaintiffs that its valuator had been unable to gain access to the premises for purpose of inspection and that the application would have to be reopened when arrangements were made to permit an inspection.
The answering affidavit of defendants admit that the defendant-wife refused to permit the valuator to inspect the premises when he called for that purpose because of the illness of her children.
Plaintiff's attorney attempted by communication, commencing May 27, 1957, with defendants' attorney to arrange for an inspection. On June 10, 1957--seven days after the expiration of the 45-day period--defendants' attorney advised plaintiffs' attorney that the premises would be available for inspection at any time. Thereafter an inspection was made and a final bank commitment was issued on July 3, 1957.
Although the papers do not reveal the date, it was stated on oral argument that on or about June 10, 1957, defendants returned the down payment with a letter advising that they had elected to cancel the contract since plaintiffs had not complied with the 45-day clause.
In response to questioning from the Court on the oral argument, defendants' attorney stated that the reason for cancelling the contract was that defendants had then decided they wante...
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...the contract. A seller cannot defeat his contract obligations by creating a condition contrary to its terms (see Schwartz v. Donnenberg, 10 Misc.2d 490, 168 N.Y.S.2d 31). The farm was owned by Dora Plaisted and Ruth Plaisted. Dora, nearly 100 years old, had a life use therein and Ruth owned......
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