
    J. L. Emil Schueler, Appellant, v. Mary Louise Dooley, Respondent.
    Second Department,
    March 1, 1912.
    Real property — vendor and purchaser—agreement to convey free of incumbrances unless vendee elects to assume liens — effect of failure of vendee to state intentions.
    Where a vendor of lands agreed to convey by a full covenant deed of warranty free of incumbrances, except that should the vendee on the day of closing title desire to assume any hens, the amount thereof should be deducted from the purchase price, the vendor was entitled to wait until the day of passing title to learn whether the vendee desired to assume existing hens, and where the vendee failed to disclose his intention until that day the vendor was entitled to a reasonable time thereafter in which to remove the incumbrances.
    Hence, where neither party claimed default as against the other on the day set for passing title, it is error in an action by the vendee to recover earnest money paid to submit the issue as to whether the vendor was in default.
    Woodward and Rich, JJ., dissented.
    Appeal by the plaintiff, J. L. Emil Sohueler, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 8th day of October, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of September, 1910, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Peter R. Gatens, for the appellant.
    
      Clarence Edwards [Joseph J. Tuohy with him on the brief], for the respondent.
   Per Curiam:

The vendor had agreed to give a full covenant deed of warranty of the premises free from incumbrances, “ except that should the party of the second part desire on the day of closing title, to assume any mortgage or mortgages that may be liens on said premises, and taxes or assessments, then, and in that event the amount of said mortgage and taxes together with accrued interest to said date of delivery of deed shall be deducted from the balance of said purchase price (it being mutually understood and agreed by the parties hereto that all previous contract, writings, agreements and understandings, written or oral are merged in and superseded by this agreement), and which deed shall be delivered on the 28th day of January, 1907, at 1 o’clock p. M., at the office of Joseph J. Tuohy, No. 28 Jackson Avenue, in Long Island City, Queens County, New York, and it is understood that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators and assigns of the respective parties.”

No one claimed at the trial that on the 28th* day of January, 1907, the vendor was in a position to give the title which she had contracted to give, that is, free from incumbrances. There was no requirement in the contract that the vendee should give any notice to the vendor as to the mortgages, etc., prior to the day on which the title was to close. Therefore, neither of the parties to the contract was in default on that day, because the courts would read into the contract a provision that the vendor was entitled to wait until the closing day to learn from the vendee whether he would assume the incumbrances, and was likewise entitled to a reasonable time thereafter to remove the incumbrances if the vendee failed to disclose his intentions on that point until the closing day. Neither party claimed as against the other a default on that day. It was error, therefore, for the trial court to submit to the jury as a question of fact to determine whether the plaintiff was in default on January 28, 1907.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Jerks, P. J., Thomas and Carr, JJ., concurred; Woodward and Rich, JJ., dissented.

Judgment and order reversed and new trial granted, costs to abide the event.  