James v. Schmidt — 18 N.Y. St. Rep. 369

Majority

p. 369

Mary E. James v. Joseph W. Schmidt.

(City Court of Brooklyn, Special Term,

Filed October 15, 1888.)

Headnote

■Contract—Real property—Sales of.

The plaintiff contracted to convey certain lands to the defendant free and. clear of incumbrances, for a stated sum. At the time of the delivery of the deed, the defendant withheld from the purchase-price the amount of a certain assessment laid upon the property in question, and the plaintiff agreed to the deduction. Subsequently the assessment was vacated, no payment thereon having been made by the defendant. Held, that the plaintiff was not entitled to recover the sum thus deducted, it not being withheld merely as security for the payment of the assessment.

The plaintiff owned lots on Cooper street in the city of Brooklyn, on which, early in 1887, an assessment for the grading and paving of said street was confirmed by the common council. On August 1,1887, the plaintiff, through her agent, contracted to sell the lots to the defendant, free and clear of encumbrances, for $20,000, receiving $1,000 down, the remainder to be paid on the delivery of the deed. The defendant took the deed under the contract, but claimed to have deducted from the purchase-price some $900, the amount of the assessment for grading and paving. At that time no warrant for its collection had ever been issued by the collector of taxes. The plaintiff’s representative consented to the deduction. Subsequently, in November following, the assessment was vacated by the common council, on the ground that Cooper street had never been legally opened. The plaintiff thereupon demanded payment of the money so kept back out of the purchase-price, and that being refused, brought this action to recover the amount. The defendant had not paid the assessment.

Sidney V. Lowell, for pl’ff; Wm. J. Gaynor, for resp’t.

The assessment in question was levied

under chapter 248 of the Laws of 1885, and by section 2 of that act became a lien when confirmed by the common council; but, before.a warrant could issue for its collection,, a certificate by the corporation counsel was necessary. Section 6, chapter 248, Laws of 1885; § 6, title 7, charter of 1873. It does not seem material or necessary to determine the question whether Cooper street was a public or a private-thoroughfare, as the assessment may have been voidable, but it clearly was not void. When the contract was signed by the parties, the defendant found the assessment confirmed and a lien, and substantially agreed to buy lots on a paved street, and, when the deed was delivered, insisted that the assessment should be deducted from the purchase-price, and refused to take title unless the assessment was-allowed. The representative of plaintiff accepted the bal- ' anee of the purchase-money, and delivered the deed, and the plaintiff ratified his acts by accepting such balance, and cannot now say that her agent had no authority to allow the deduction.

There was a dispute between the parties, and they adjusted it between themselves, and the plaintiff allowed the defendant his claim, and agreed that the assessment should be deducted, from the purchase-price, and there was no agreement that the money should be retained as security for the payment of the assessment.

The above conclusion seems, also, just and equitable. The plaintiff should have ascertained, before the making of the contract, the liens on her property, and in such case, there would have been no subsequent trouble.

If the plaintiff should recover in this action, such recovery would be the result of a technicality in the assessment, proceedings, and the defendant would own lots in a street not paved when by his contract, he substantially agreed to-buy on a paved one, as stated before. If the assessment had been vacated during the existence of the contract, the defendant could have asked to have the contract canceled. Whether he could have succeeded I am not called upon to decide. He had the right to ask to have it canceled, and the plaintiff, by her agent, whose acts have-been ratified, deprived him of that right, by accepting the remainder of the purchase-price and delivering the deed. Graham v. Meyer, 99 N. Y , 611 .

Judgment for defendant, with costs.