Link Realty & Construction Co. v. Public Construction Co.

Headnote

Link Realty & Constr. Co. v. Public Construction Co., 169 App. Div. 88 , affirmed.

•Appeal from a judgment, entered June 16, 1915, upon an order of the Appellate Division of the. Supreme Court in the second 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. The action was for specific performance of a contract for the exchange of property, or in the alternative for damages in the event that

specific performance could not be decreed. By the terms of the contract, the plaintiff was to convey to the defendant unimproved property on Prospect Park West, borough of Brooklyn, city of New York, in exchange for improved property owned by the defendant. The complaint set forth the contract and alleged a due compliance with all of the conditions thereof by the plaintiff, a tender of a full covenant and warranty deed to the defendant, and that the defendant failed to appear at the time and place of closing. Upon the trial the defendant conceded its inability to perform on the contract day, but asserted that the plaintiff itself was unable to perform inasmuch as the restrictive covenants incumbering the plaintiff’s property were more onerous and burdensome than those stipulated in the contract.