Whalen v. Stuart

• Decision Date: 05 March 1909
• Citation: 194 N.Y. 495,87 N.E. 819
• Parties: WHALEN v. STUART et al. DUKE v. STUART et al.
• Court: New York Court of Appeals Court of Appeals

194 N.Y. 495

87 N.E. 819

WHALEN

v.STUART et al.

DUKE

v.STUART et al.

Court of Appeals of New York.

March 5, 1909.

Appeal from Supreme Court, Appellate Division, First Department.

Two actions against Inglis Stuart and others as executors of William F. Buckley, deceased, one by John Whalen and the second by Nellie Duke. Defendants appeal from judgments in each case, the first affirming a judgment on a decision at Special Term (123 App. Div. 446,108 N. Y. Supp. 355), and the second from an order resettling a judgment (105 App. Div. 376,94 N. Y. Supp. 235), and the two appeals are heard together. In the first case the judgment is reversed and complaint dismissed, and in the second case the appeal is dismissed.

In March, 1903, one Nellie Duke entered into an agreement with the defendants, under which the latter agreed to sell, and the former agreed to buy, nine lots situate on Amsterdam avenue between 157th and 158th streets in the borough of Manhattan in the city of New York. The purchase price was $140,000, of which $5,000 was paid when the agreement was signed, and the balance was to be paid upon the delivery or tender of the deed as provided for in the agreement. Contemporaneously with the execution of that agreement, the same parties also executed another, pursuant to which the defendants in their individual capacity agreed to sell, and the said Nellie Duke agreed to buy, two other parcels of land, one of which is situated on the boulevard and the other on 157th street. This latter contract was thereafter consummated so far as it relates to the lot on 157th street. The contract for the boulevard lot was not completed. It is not in litigation in this suit, however, and is referred to only because of the attitude which the vendee assumed toward both contracts. The 1st of July, 1903, was the day fixed for the transfer of title, but various postponements were agreed to until about October 1, 1903, when an indefinite adjournment was taken owing to the pendency of a suit affecting the title of the property in suit, and, incidentally, the boulevard lot as well. In that behalf it appears that Buckley, the testator of the defendants, acquired his title to the Amsterdam avenue lots through a quitclaim deed from one Sarah Harris, which was later confirmed by her will. In May, 1903, one Williams, who claimed to be a nephew of Sarah Harris, brought a suit for the partition of the Amsterdam avenue lots. He based his claim of right to partition upon the alleged failure to cite him before the Surrogate's Court upon the probate of the will of his aunt, and upon the alleged fraud and undue influence under stress of which he claimed that she had executed the deed and will referred to. In that suit he served the defendants with the summons and filed the lis pendens and complaint. This situation raised the question whether there was a cloud upon the defendants' title, and as to that there seems to have been some difference of opinion. Whether the title was actually unmarketable is not important for present purposes. It is enough to say that the defendants appeared in that action and demanded a copy of the complaint, which was refused. Following this refusal and in August, 1903, the defendants moved at Special Term for an order that the complaint should be dismissed unless within five days a copy was served. This order was not complied with, but on August 31, 1903, after the five days had expired, Williams obtained an order extending for 20 days his time to serve a complaint. Within that 20 days Williams made service upon the defendants, who promptly returned the complaint with the objection that the time for service had expired. This was followed by a motion to compel the defendants to receive service of the complaint, and that motion resulted in an order requiring the defendants to accept service of the complaint unless within 2 days they should move to vacate the order extending time to serve it. Such a motion was made, and on October 7, 1903, the late Mr. Justice Barrett rendered a decision dismissing the complaint in that action. The order upon that decision was not entered, however, until October 12, 1903, and the judgment of dismissal was docketed as of October 17, 1903. Thus matters stood on the 7th day of October, 1903, when there was a meeting of the parties to the contract now before the court for the purpose of fixing the date of closing. This was fixed as for the next day, October 8, 1903. At that time the parties met, not to close the contract, but ‘to determine the relations of the parties, and make tenders to fix their respective decisions, claims and demands.’ The vendee, plaintiff's assignor, then claimed that the contracts for the three pieces of land constituted one transaction, and that she was entitled to ‘all or none.’ She also insisted that the title to the boulevard lot marketable, and that seemed to be the principal objection to the taking of the title of the premises in suit. Be that as it may, the trial court has found that on October 8, 1903, ‘the vendee did not insist on the performance of the contract, but demanded the return of her deposit (and expense) and the rescission of the contract.’

A second chapter in the history of the case must be briefly outlined: On the 27th of November, 1903, the vendee, plaintiff's assignor, commenced an action against the defendants in which she asked for a reformation of the contract as to the Amsterdam avenue lots by inserting therein a clause to the effect that it was conditioned upon the fulfillment of the contract relating to the property on the boulevard and 157th street. The complaint alleged that the title to the boulevard lot was unmarketable and prayed for judgment that the vendors return to the vendee the amount of her deposit or payment on the contract relating to the Amsterdam avenue property, and for damages. That action was brought to trial, and the complaint was dismissed on the merits, but without prejudice to the vendee's right to maintain an action to recover her deposit with damages. Upon appeal to the Appellate Division that judgment was affirmed, but subsequently modified so that it should not be a bar either to a suit for specific performance or an action to recover the vendee's deposit, payment, and damages. In October, 1905, the vendee assigned the contract to the plaintiff, and then this suit was brought.

David B. Hill, for appellants.

Benjamin N. Cardozo, for respondent.

WERNER, J. (after stating the facts as above).

As the record stands the case is very simple, notwithstanding the extended statement of facts which is essential to a proper comprehension of the questions which are decisive of this appeal. The suit is brought to enforce specific performance of a land contract. It is prosecuted by the assignee of the vendee, and, of course, the plaintiff must abide by the case made for him by his assignor. At Special Term the plaintiff was awarded the judgment prayed for in the complaint, and upon appeal to the Appellate Division that judgment was unanimously affirmed. 123 App. Div. 446,108 N. Y. Supp. 355. If the findings made at Special Term were consistent with each other and with the conclusions of law upon which the judgment is based, the unanimous affirmance at the Appellate Division would preclude any disturbance of the judgment in this court; but that is not the case. While the larger number of the findings are such as to justify and require the judgment rendered, they are opposed by at least two others, which are so inconsistent and controlling as to forbid that judgment. The rule is well settled that an appellant who seeks to reverse a judgment which is based upon inconsistent findings is entitled to the benefit of those that are most favorable to him. Bonnell v. Griswold, 89 N. Y. 122;Kelly v. Leggett, 122 N. Y. 633, 25 N. E. 272;Traders' Nat. Bank v. Parker, 130 N. Y. 415, 29 N. E. 1094;Israel v. Manh. R. Co., 158 N. Y. 624, 53 N. E. 517;Nickell v. Tracy, 184 N. Y. 386, 77 N. E. 391;City of Buffalo v. D., L. & W. R. R. Co., 190 N. Y. 84, 98,82 N. E. 513, 16 L. R. A. (N. S.) 506. The application of this rule to the case at bar is determinative of the result, because the findings are not only inconsistent but irreconcilable. Without referring to those findings which are concededly appropriate to the judgment rendered, we will quote from the two...