Goldman v. Willis — 64 A.D. 508

Majority

p. 508

Morris Goldman, Appellant, v. Isabella M. Willis, Respondent.

Headnote

Tender and request to perform—tliey are prerequisites to an action to recover money paid under a contract óf sale of real property.

Where an executory contract for the sale of real estate fixes no time for the final transfer of the title, but it is the understanding of the parties that such transfer shall he made within a few days of the signing of the contract, the vendee cannot maintain an action to recover the amount of an advance payment made by Mm upon the contract, on the ground that the- vendor is in default, without making a tender of the amount due and requesting the. vendor to perform.

Appeal by the plaintiff, Morris Goldman, from a judgment of the Municipal Court of the city of New York in favor of the defendant.

Charles H. Machín, for the appellant.

Ellis L. Aldrich, for the respondent.

This is an action in the Municipal Court to recover $100, this . being the amount of an advance payment upon an executory contract for the sale of real estate, the plaintiff claiming that the defendant is in default in conveying the property.

While there was no time fixed in the contract for the final transfer, the evidence is conclusive that there was an understanding that it was to be within a few days of the signing of the contract. The ■. plaintiff never made any tender of the amount due; never asked the defendant to perform, and under the rule laid down in Ziehe n

p. 509

v. Smith ( 148 N. Y. 558 , 560) the judgment dismissing the complaint upon the merits should be affirmed, with costs.

Present Goodrich, P. J., Woodward, Hirschberg, Jenks and Sewell, JJ.

Judgment of the Municipal Court affirmed, with costs.

Cases cited

Ziehen v. Smith 148 N. Y. 558 N.Y. 1896-02-25 at 560 p. 509