
    WRIGHT v. LEVY.
    (Supreme Court, Appellate Term.
    November 18, 1903.)
    1. Earnest Monet Deposit—Recovery.
    Where plaintiff, who had deposited money as earnest of her performance of an agreement to purchase from defendant a contract for the sale of real estate, came on the day fixed for performance to his office, well within usual business hours, but he was not present and the necessary papers were locked up, and When she came the next day he told her the deposit was forfeited for failure to attend the day before, she is entitled to recover the deposit.
    Appeal from Municipal Court, Borough of Manhattan, Eighth District.
    Action by Adelaide V. Wright against Mitchell A. C. Levy to recover money deposited as earnest for the performance of a contract. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
    Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.
    B. F. Feiner, for appellant,
    Wm. A. Montague, for respondent.
   BISCHOFF, J.

The question whether the plaintiff knew or did not know of the requirement for the payment of taxes, as embodied in the contract of sale which the defendant had agreed to assign to her, is not involved upon this appeal. The recovery of the deposit of $250 is fully supported by evidence that the plaintiff, on the day fixed for the performance of the agreement with the defendant, came to the latter’s office prepared to close the matter, but that he was not present and the papers were locked in the safe, a fact which made it impossible for performance to be tendered in his behalf at that time. The next day plaintiff called again, and was informed by defendant that the deposit was forfeited for her failure to attend the day before.

According to thoroughly credible testimony, the plaintiff’s attendance was well within the usual business hours contemplated by the agreement, and the defendant’s repudiation of the contract was not justified, and placed him clearly in default. The parties never reached a point where the potential disagreement as to the terms of the contract to be assigned could affect their respective rights. The defendant simply declined to observe his agreement, and the recovery of the deposit was justified by the facts.

Judgment affirmed, with costs. All concur.  