Cordes v. Kenney — 28 N.Y. St. Rep. 393

Majority

p. 393

Louis Cordes, Resp’t, v. Rosanna Kenney and Mary E. Kenney, App’lts.

(Supreme Court, General Term, Second Department,

Filed December 9, 1889.)

Headnote

1. Contract—Time, when not the essence of.

When the time for closing the transaction has been several times adjourned, one party cannot elect to make time the essence of the contract without giving the other reasonable notice.

2. Specific performance—When wile be decreed.

When money has been paid on a verbal contract for the purchase of land, possession given and improvements made by the purchaser, specific performance will be decreed.

Appeal from judgment in favor of plaintiff, entered upon findings made by the court.

Action for specific performance of a verbal contract for the sale of real estate. March 22, 1888, plaintiff paid $500, and was. given the keys of the premises and took possession. The time for closing the transaction was adjourned several times, as plaintiff was unable at these times to • complete performance, but plaintiff made extra payments on account of the delay, and made efforts to complete on his part. In October, 1888, defendant conveyed the premises to her daughter, who paid no consideration and knew of the contract and the facts connected with it.

Jas. D. Van Hoeveriberg, for app’lts; Julian B. Shape and Chas, Stewart Davidson, for resp’t.

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 Kellerman, 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 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 elect to make time 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

p. 394

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 held aughter 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.

Barnard, P. J., and Dykman, J., concur.