
    Joseph Schiff, Appellant, v. Abraham I. Tamor and Samuel Kaplan, Respondents.
    
      Contract of sale .of real property.—a provision that a mortgage ther'eon shall be extended is not performed where the extension provides that any State, mortgage-tax shall'be paid by the mortgagor—additional allowance made Without objection, not disturbed on appeal.
    
    Where the vendor in a contract for the sale of land subject to a mortgage stipulates that such mortgage shall “be extended, prior to the closing of title hereunder, for not less than three years, at the same rate of interest, by an , extension in writing executed by the holder thereof and duly acknowledged,” the vendee is justified in refusing to accept the conveyance if the extension of the mortgage tendered by the vendor contains a provision that, if- the State of New York enacts legislation taxing mortgages, the amount of such tax, up to the full legal rate of interest, shall be paid by the mortgagor, and that in the event of such tax exceeding the legal rate of interest the. mortgage is, at the election of the mortgagee, to become presently due and payable.
    In such a case the vendee is entitled to recover the advance payment made by him upon the purchase price and also the amounts which the contract provides shall be paid in the event of the contract not being performed.
    When, in the absence of an objection to the granting of an additional allowance, the Appellate Division will not disturb such allowance, although it is of the opinion that the case was not a proper one for the granting of an extra allowance, considered.
    . Appeal by the plaintiff, Joseph Schiff, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clel’k of the county of Kings on the 3d day of May, 1904, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the plaintiff’s complaint upon the merits.
    
      Jacob R. Schiff, for the appellant.
    
      Jacob Manheim, for the respondents.
   Woodward, J.:

The plaintiff brought this action to compel the specific performance of a contract for the purchase of certain real estate, situated in the borough of Manhattan. It appears that the plaintiff had a contract for the purchase of the premises in question from Simon Gold-stein and Max Gennis, and that he subsequently became the owner in fee of the same. On the 10th day of July, 1903, the plaintiff having the above contract, entered into a contract with the defendants for the sale of the premises, agreeing to transfer the property on the 14th day of A.ugust, 1903, which date was subsequently changed by mutual agreement to the nineteenth day of August. By the terms of the contract between the plaintiff and defendants the latter were, in addition to certain cash considerations, to assume a mortgage for $18,000 against thé premises, and the plaintiff stipulated that “the principal sum, of” this mortgage was “to be extended, prior to the closing of title hereunder, for not less than three years, at the same rate "of interest, by an extension in writing executed by the holder thereof and duly Obviously the fair import of this contract was that the defendants Were to have an extension of the then existing mortgage': for 'a period of three years at. the rate of interest provided by the mortgage, without any other conditions than those named in the mortgage. On the day fixed for the transfer the defendants: were On hand with the money necessary to close the-, transaction,, and offered to perform, but when the-plaintiff .produced the extension in writing it was coupled with a provision that, if the State of ¡New York enacted legislation taxing mortgages, the amount of such tax, up to- the full legal rate of interest, should be paid by the mortgagor, and, that in the event of such tax exceeding the legal rate of interest the mortgage was, at the election of the mortgagee, to become presently due and- payable: The ■ defendants refused to accept ¡the conveyance under the provisions of this extension, and! the plaintiff brought this action for specific performance. The defendants pie,aded (the con"tract, and as a counterclaim demanded a return of the $500 paid on the execution and delivery- of the contract of sale. . Upon the trial the plaintiff withdrew his complaint, and the.trial: proceeded upon the counterclaim, the defendants -taking the affirmative and establishing the facts as briefly outlined above.: The contract provided for the payment of $125 for searches, etc.-, in the,event of the agreement falling through, and the action was tried purely for the recovery of the $500 and the $125. provided for hy the terms of the contract, although the original claim was for larger damages.

Practically the only question in the case is whether,’as a matter of law, the defendants, upon the failure of the plaintiff to give the extension according to its terms, were justified in refusing to accept ‘ the; premises, and thus became entitled to a refund of the money advanced and the stipulated charges, and we aré'clearly of opinion that the determination of the learned court at Special Term was justified. While it may be that there is no great danger of the Legislature enacting the statute suggested, it is conceded by the plaintiff that prudently managed corporations, like the owner of the mortgage involved here, have been in the habit of inserting like clauses in their mortgages, and this court will hardly take judicial notice of the improbability of the Legislature enacting any revenue measure within the scope of its constitutional powers for the sake of Working a forfeiture upon persons who have lawfully contracted and who have shown a willingness to perform within the fair intent of their contracts. The contract of the defendants was for an unconditional extension of the mortgage, just as it then existed, for a period of three years; this was a condition precedent to the right of the plaintiff to performance, and it was not satisfied by an extension which might, upon a contingency, increase the interest from four to six per cent,, or make the mortgage fall due in a less period than three years. If the plaintiff was not entitled to a decree for specific performance, and this was abandoned upon the trial, it is difficult to understand how he can be entitled to retain the $500 paid on account of the purchase, or be relieved from the stipulated charges for searches, etc., and it is clearly not the law that a contract made upon a condition, can be binding, upon the other party without a performance or a waiver of the condition.

While we are inclined to the opinion that this was not a case for an additional allowance under the provisions of' section 3253 of the Code of Civil Procedure, it was made without objection or exception on the" part of the plaintiff, and there are equitable reasons why it should not be denied on this appeal. The case may have presented, in some of its aspects, before the plaintiff withdrew his complaint, difficult and extraordinary conditions, and in the absence of objection or exception, it may be held that such was the case.

The judgment appealed from should be affirmed, with costs.

Hirschberg, P. J., Jenks, Rich and Miller, JJ., concurred.

Judgment affirmed, with costs.  