Majority
p. 213(67 Hun, 321.) WOOLLEY v. FRIEDLANDER. (Supreme Court, General Term, First Department. February 17, 1893.) Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.
Headnote
Contract for Sale of Land—Construction.A contract for the sale of a lot obligated the vendor to erect a house on the premises, and to complete it by a specified day, when he was to deliver a deed, and made it the purchaser’s duty to pay any increased costs in the erection of the house, caused by alterations made at her direction. Held, that taxes and interest on a mortgage which the vendor was compelled to pay after the date fixed for the completion of the house and the delivery of the deed, owing to a delay caused by alterations directed by the purchaser, were not “increased costs of the house,” within the meaning of the contract, in view of the fact that the mortgage existed as an incumbrance against the land before the erection of the house, and that the taxes would have become a lien against the land before the date originally fixed for the delivery of the deed if the public officials had not accidentally delayed the performance of their statutory duties.
Appeal from circuit court, New York county.
Action by James V. S. Woolley against Marie Friedlander for money alleged to be due him on a contract for the sale of land to defendant. From a judgment entered after a dismissal of the complaint on the opening of counsel, plaintiff appeals.
Affirmed.
Richards & Brown, (I. Tredwell Richards, of counsel,) for appellant.
Cardozo Bros., (B. N. Cardozo, of counsel,) for respondent.
The plaintiff in this action, being the owner of' a certain lot of land in the city of New York, entered into a contract with the defendant for the sale to her of said lot of land with a building to be erected thereon in accordance with certain plans and specifications. The house w7as to be completed, and payment for it to be made, and the deed delivered, on September 1, 1887. This contract contained the following clause:
“It is further agreed that the purchaser shall have the privilege of altering any of the trimmings or fixtures of said house, provided such alterations do not increase cost of said house, excepting where increase of cost shall be borne by purchaser. ”
p. 214
Certain alterations were suggested by the defendant, in consequence of which it was impossible to finish the house b3r the 1st of September, as provided by the contract, and the title was passed on the 20th of October. The plaintiff claimed that by reason of the delay caused by the alterations the taxes for the year 1887 on the property became due, and the plaintiff was obliged to pay them under the contract; also Croton water renty, and also certain interest had accrued upon a mortgage of $20,000, which interest had not accrued on the 1st September, when the time for the completion of the work had arrived. It is claimed that these under the clause of the contract in question were items of increase in the cost of the house. It seems to us perfectly apparent that no such items were in contemplation of the parties at the time of the entering into of this agreement. The increase of the cost of the house did not appty to taxes and the interest upon incumbrances, which were assessed against the land and not against the house, because the house was not in existence- at the time the assessment was fixed. And it is further apparent that, as far as the taxes were concerned, they were not in contemplation of the parties as liable to become liens upon the land after the 1st of September, because, under the law, if the public officials connected with the levying of the tax had performed their duties in the time prescribed by statute, such tax would become a lien on or before the first Monday of September in the year in question, as the statute requires that on or before said day in eg,ch year the board of aldermen shall deliver the assessment rolls to the receiver of taxes, together with their warrant directing and requiring him to collect from the several persons named in such rolls the sums set opposite their respective names. The fact that by accident during this year the delivery of the assessment roll to the receiver of taxes was delayed by the board of aldermen cannot increase the claim of the plaintiff under the terms of the agreement, which contemplated no such contingency. And, in view of the agreement itself, which contains no references to incumbrances upon the property, it may very well be claimed that the plaintiff had become liable, because of his ownership of the property, to the payment of these taxes long before the 1st day of September named in the agreement, under the principles laid down in Rundell v. Lakey, 40 N. Y. 513 , and approved in Re Babcock, 115 N. Y. 450 , 22 N. E. Rep. 263 .[1] We think that the items sought to be recovered in this action cannot, in any sense, be deemed an increase in the cost of the house, but, as alread3r suggested, if they applied to anything, they applied to the land. There seems to be no reason for disturbing the judgment, and the same should be affirmed, with costs. All concur.
1 These cases decide that the personal liability of the owner of the property for payment of taxes is complete as soon as the assessed valuations have been made; and if, in the interval between that time and the imposition of the tax by the board of aldermen, the property should be sold, the personal liability of the vendor would still remain, and the tax, in case of need, could be collected from his property.
Cases cited
- Rundell v. Lake 40 N. Y. 513 p. 214
- In re the Judicial Settlement of the Account of Babcock 115 N. Y. 450 p. 214