Slamow v. Del Col

• Decision Date: 07 May 1992
• Citation: 584 N.Y.S.2d 424,79 N.Y.2d 1016
• Parties: , 594 N.E.2d 918 Michael SLAMOW et al., Respondents, v. John DEL COL, Appellant, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 424

584 N.Y.S.2d 424

79 N.Y.2d 1016, 594 N.E.2d 918

Michael SLAMOW et al., Respondents, v. John DEL COL, Appellant, et al., Defendants.

Court of Appeals of New York.

May 7, 1992.

[79 N.Y.2d 1018] [594 N.E.2d 919] Matthew D. Arkin, Brooklyn, for appellant.

David W. Silverman, New City, for respondents.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated by the Appellate Division (174 A.D.2d 725, 571 N.Y.S.2d 335).

We would but add the following, in response to the dissent. The best evidence of what parties to a written agreement intend is what they say in their writing. Here, the words used in the parties' contract are clear and unambiguous, and entitle the purchasers to return of their down payment. That this may be a standard clause in a form for the sale of real property suggests even more strongly that the clause should be rewritten if it is indeed inaccurate, rather than for this Court to speculate as to what the parties to a particular transaction could have believed it meant.

HANCOCK, Judge (dissenting).

I would reverse and reinstate the order of Supreme Court.

The appeal turns on one issue: the meaning of paragraph 23, the mortgage contingency clause in form M 146--the standard contract of sale for condominiums, prepared by the Committee on Real Property Law of the Association of the Bar of the City of New York. The standard mortgage contingency clause--with the blank spaces for the date and the amount of the lender's commitment filled in by the parties--provides in pertinent part:

"23. Mortgage Contingency: The obligations of Purchaser hereunder are conditioned upon issuance on or before September 1, 1988 of a written commitment from any Institutional Lender pursuant to which such Institutional Lender agrees to make a loan to Purchaser, at Purchaser's sole cost and expense, of not less than $201,375.00 * * * Purchaser shall (a) make prompt application to one or more Institutional Lenders for such first mortgage loan".

The purpose of the typical mortgage contingency clause is simply to relieve the purchaser of the obligation of going through with the contract if mortgage financing is not obtainable in a given amount. No one contends otherwise. The commonly understood meaning of a mortgage contingency clause, as described by Justice Burrows at Supreme Court, is this:

"A mortgage contingency clause in a contract of sale of real estate is for the benefit of a purchaser who has represented that he is only ready, willing and able to purchase if third-party financing is obtainable. In order to enter into the contract and allow purchaser time to obtain the requisite financing the contract is made conditional upon fulfilling the very financing requirement represented by purchaser as necessary. Thus, a purchaser, who has made a good faith estimation of his ability to obtain the requisite financing, is protected from conclusively binding himself to an otherwise impossible contract should his good faith estimation prove incorrect" (emphasis added).

It is not suggested that the Committee on Real Property Law which drafted form M 146 intended that the standard mortgage contingency clause should be given any meaning other than the generally accepted meaning--i.e., one which makes the purchaser's obligation depend not on the purchaser's action in applying for a loan but on the willingness of a third party to make a loan. Yet, here the purchasers and the Appellate Division in reversing Supreme Court and, indeed, the majority of this Court read the standard clause as though it says something quite different. Instead of making the contract contingent on a third party's willingness to make a commitment "of not less than $201,375.00", they make it contingent upon action by the purchasers; i.e., their act of applying for a loan "of not less than $201,375.00". Under this construction, the condition is met if the purchasers apply for a loan in any...