Cordes v. Kenney — 7 N.Y.S. 849

Majority

p. 849

Cordes v. Kenney et al.

(Supreme Court, General Term, Second Department.

December 10, 1889.)

Headnote

Specific) Performance—Contract—Time of Essence.

Specific performance of a contract to convey land will be granted where it appears that plaintiff was the sole purchaser, and was the party to whom the deed was to be made; that time was not of the essence of the contract, and that the time for completing it had several times been postponed, and payments received thereafter; that plaintiff was in possession, and had made valuable improvements; that no notice had been given him that defendant intended to terminate the contract; and that a conveyance to a third person was without consideration, and with notice of plaintiff’s claim.

Appeal from special term, Richmond county.

Action by Louis Cordes against Rosanna Kenney and Mary Ellen Kenney for specific performance of a contract to convey land. Judgment for plaintiff, and defendants appeal.

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

J. R. Van Hoevenberg, for appellants. Julian B. Shope, for respondent.

The findings of fact of the judge below seem to be sustained by the evidence, and the conclusions of law strictly follow the findings of fact. The title of the property stood in the name of Rosanna Kenney, and the plaintiff was the sole purchaser. The proof does not disclose any interest in Kellennan, and therefore he was not a necessary party to the suit. In fact, the weight of evidence is decidedly to the effect that the plaintiff was the sole party to whom the deed was to be made. It is also fairly proved that time was not of the essence of the contract. The time for closing the transaction was several times adjourned, and after such a state of facts the defendant could not eléct to make time of the essence of the contract without giving the plaintiff reasonable notice. The contract was fairly entered into, and partly executed by the payment of money and the transfer of possession to the plaintiff. It would have been a gross fraud upon the plaintiff’s right, after he had made payments upon the purchase, and valuable improvements upon the property, to refuse specific performance. The case is too plain to require the citation of authorities that there was a sufficient performance of the contract to authorize a court of equity to decree specific performance. The pretended conveyance by Mrs. Kenney to her daughter cannot stand in the way of granting proper relief to the plaintiff. The conveyance was without consideration, and to a party who had notice of plaintiff’s claim. There was no error in the admission or rejection of evidence sufficient to reverse the judgment.