Woolley v. Friedlander — 51 N.Y. St. Rep. 821

Majority

p. 821

James V. S. Woolley, App’lt, v. Marie Friedlander, Resp’t.

(Supreme Court, General Term, First Department,

Filed February 17, 1893.)

Headnote

Vendor and purchaser — Construction op contract.

A contract for the sale of land contained no reference to incumbrances, and provided that the vendor should erect a house on the land. It also provided that the purchaser should have the privilege of altering any trimmings or fixtures, “provided such alterations do not increase cost of said house, excepting where increase of cost shall be borne by purchaser.” By reason of certain proposed alterations the house was not completed at the time specified. Held, that the words “increaseof cost ” of the house did not include interest on a prior mortgage accruing after the date fixed for such completion, which the vendor was compelled to pay, nor taxes which should have been levied before, but which, by accident, were not imposed until after said date.

Appeal from a judgment entered upon an order dismissing the complaint in an action upon contract.

Richards & Brown (J. Tredwell Richards, of counsel), for app’lt; Cardozo Bros. (B. N. Cardozo, of counsel), for resp’t.

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 was 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.’’

Certain alterations were suggested by the defendant, in consequence of which it was impossible to finish the house by the first 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 rent; and, also, cer-. tain interest had accrued upon a mortgage of $20,000, which interest had not accrued on the first 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 apply to taxes and the interest upon incumbrances, which were assessed against the land and not against

p. 822

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 each 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 Matter of Babcock, 115 N. Y., 450 ; 26 St. Rep., 382 . 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 already 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.

O’Brien and Follett, JJ., concur.