Gates v. Hendrick — 61 N.Y. Sup. Ct. 92

Majority

p. 92

HENRY GATES, Appellant, v. LEVI G. HENDRICK, Respondent.

Headnote

Contract to clear land — within what time it must be clearred.

In an action brought to recover damages for the non-performance of a written contract to clear five acres of land, and for the loss of the use of such land, it appeared that the contract, which was for the sale by the defendant Hendrick to the plaintiff Gates of four acres of land, was dated August 14, 1882, and provided as follows: “ Gates further agrees to lease the said land bought of Hendrick, together with that he now owns which is cleared, or Hendrick may clear, lying to the north of the same, being part of twenty-five acres, for four years from April first next, at forty dollars per annum, payable annually. Hendrick is to pay also all taxes assessed against said land. Said Hendrick also agrees to clear five acres adjoining the land now cleared.”

Held, that the defendant had four years from the 1st day of April, 1883, in which to perform his part of the agreement for the 'clearing of the five acres of land, for the alleged failure to perform which this action was brought.

Appeal by tbe plaintiff, from a judgment entered in Wayne' •county, September 1, 1888,' on tbe report of a referee dismissing tbe plaintiff’s complaint.

Jacob B. Decher, for tbe appellant.

BrmTc & Joiner, for tbe respondent.

This action was brought to recover for tbe non-performance of a written contract to clear five acres of land, and for tbe loss of tbe use of such land.

Tbe answer sets up tbe defense that tbe action was prematurely brought. It was begun on tbe 25th day of January, 188J. Tbe contract was dated tbe 14th day of August, 1882, and provided that tbe defendant should sella part of tbe south fifty acres of land, on which be then resided, lying north of tbe highway, being about four acres of land, for which tbe plaintiff was to pay him $100 per acre. After certain other provisions not necessary to mention in detail tbe contract provides: “ Gates further agrees to lease tbe said land bought of Hendrick, together with that be now owns, which is cleared, or Hendrick may clear lying to tbe north of tbe same, being part of twenty-five acres, for four years from April first next

p. 93

at forty dollars per annum, payable annually. Hendrick is to pay, also, all taxes assessed against said land. Said Hendrick also agrees to clear five acres adjoining tbe land now cleared. * * * Payment of rent to be made on November first in eacb year.”

By tbe fair construction of tbis instrument, tbe defendant had four years from tbe 1st day of April, 1883, namely, until the 1st-day of April, 1887, in which to perform bis part of tbe agreement for tbe supposed omission to do which tbis action is brought. The defendant bad paid tbe rent reserved, and bad performed all of tbe obligations on bis part save that be bad not completed tbe clearing of tbe five acres in question on the 25th day of January, 1887, when tbis action was begun. Hnder these circumstances, no right of action accrued to the plaintiff for tbe failure to clear tbe woodland until after tbe expiration of tbe time contracted for; hence it follows that tbe action was prematurely brought, and tbe complaint, was properly dismissed by tbe learned referee.

The judgment should, therefore, be affirmed.

Barker, P. J., and Dwight, J., concurred.

Judgment affirmed.