Fagan v. Ulrich

Headnote

Fagan v. Ulrich, 166 App. Div. 342 , affirmed.

Appeal from a judgment, entered June 15, 1915, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term without a jury, and directing judgment in favor of

plaintiffs in an action to compel specific performance of a contract to sell real property. It was alleged that the plaintiffs, in possession of the premises for ten years under a contract of sale, tendered their vendor, and his grantees with notice of their rights, the full balance of the purchase price and demanded a deed, which was refused; that the written contract contained a covenant by the vendor, in consideration' of the covenants to be performed by the vendees, to sell and convey the premises to them by deed in fee simple and a covenant by the vendees to purchase the premises of the vendor and to pay therefor $42,000 in cash and give a purchase-money mortgage for $37,000 calling for monthly interest, with the privilege of paying any sum on the principal on any interest day; that the mortgage was never made, or demanded, or tendered until a tender of the privilege of accepting a mortgage with terms to suit the vendor in lieu of cash, if the vendor so preferred, was made by the vendees when they made their tender of the unpaid balance of the purchase price and demanded a deed; that the performance of all terms of the contract by the vendees had been accepted by the vendor during the whole ten years as a satisfactory compliance with their contract. Upon the refusal to accept the unpaid balance of the purchase price and give the deed this suit was brought.