Coyne v. Valley Stream Realty Co.

Headnote

Coyne v. Valley Stream Realty Co., 166 App. Div. 696 , affirmed.

Appeal from a judgment, entered May 20, 1915, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff, entered upon a decision of the court at a Trial Term without a jury and directing a dismissal of the complaint. This action was brought to recover moneys paid by plaintiff’s decedent to the defendant under a contract dated June 22, 1901, made between the defendant and said decedent for the purchase on installment payments of lots at Valley Stream, which contained the provision that “ In the event of the death of the party of the second part, before the completion .of this contract, and provided no payment hereunder is in arrears, the party of the first part shall, upon demand, pay to the heirs, executors or administrator of the party of the second part, upon the proper proof of such death, with full surrender and release of this contract and all rights thereunder, all money paid hereunder with interest at 4 per cent per annum.” Defendant contended that by reason of the failure of plaintiff’s decedent to make all the monthly payments on the dates provided for by the contract there were payments in arrears at the date of

her death and plaintiff could not, therefore, recover in this action.