
    Charles G. Reynolds, Respondent, v. Carrie P. Burr, Appellant.
    
      Contract to convey land if it be ‘‘not approved for a school site” — it relateé to a future not a past approval — a preliminary approval without confirmation necessary to make it effective is not sufficient —interest on a recovery of unliquidated damages.
    
    A contract whereby one of the parties thereto agreed to sell and convey to the other party thereto, who agreed to purchase, certain land in the borough of Brooklyn, in the city of New York, within sixty days thereafter for a specified sum, in case the said land was “not approved for a school site before the first day of April, 1901, by the necessary municipal authorities,” relates, not to any past action by the municipal authorities, but to future action on their part, and contemplates an effective approval-by the municipal authorities prior to the 1st day of April, 1901.
    Thus, where it appears that the preliminary approval of the site by the municipal authorities was given two days prior to the execution of the contract, but that the final confirmation, which was necessary to make the approval effective, did not take place until March 19, 1903, long after the expiration of the period within which the vendor undertook to convey the property, such vendor is not justified in refusing to execute the conveyance.
    Interest is allowed in an action to recoyer unliquidated damages for the breach of an executory contract of sale of real property where the property has a market value.
    Appeal by the defendant, Carrie P. Burr, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of March, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of April, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      James W Gerard [Manfred W. Ehrich with him on the brief], for the appellant.
    
      Robert H. Wilson, for the respondent.
   Willard Bartlett, J.:

On the 7th day of February, 1901, the parties to this action entered into a written contract whereby the plaintiff agreed to purchase and the defendant agreed to sell and convey 100 feet of ground on .Dean street, in the borough of Brooklyn, within sixty days thereafter, for the sum of $11,000, in case the said land was not approved for a school site before the first day' of April, 1901, by the necessary municipal authorities.” The defendant refused to convey the property within the time specified, although the plaintiff was ready and willing to perform the contract on his part; and in the present action the plaintiff has recovered $750 damages as the reasonable market value of the land over and above the sum which he was bound- to pay for the property under the contract, together with interest from the day fixed for passing- the title.

The determination of this appeal depends upon the proper con- ' struction of that provision in the contract which relieved the vendor from the obligation to perform if the land was approved for a school site before the^lst of April, 1901, by the nec'essary municipal authorities. I think it quite clear, first, that this clause related not to any past action by the municipal authorities-, but to future action on their part, and, secondly, that it contemplated an effective approval. Under the Greater New York charter as it existed when the contract was made (which was before the amendments of 1901 went into effect) an approval of a school site in the borough of Brooklyn in order to become effective required the action, first, of the school -board of the borough; secondly, of the board of education of the city of New York, and, finally, that of the comptroller. (Laws of 1897, chap. 378, §§ 1090, 1055, 149, as amd. by Laws of 1898, chap. 652.) Section 1090 authorized the school board of the borough to choose and determine in the first instance the sites for all school buildings within its jurisdiction and to transmit its determination to the board of education by properly certified resolutions. Under the by-laws of the board of education, enacted pursuant to section 1070 of the charter, there was a committee on sites having charge and management of all proceedings relative to the acquisition of sites for school buildings, subject to the approval of the board itself. In brief, under the provisions of the charter and of the rules, regulations and by-laws established in accordance with those provisions, the procedure necessary to make the selection of a school site effective required action oh the part of the board of’ education confirming the determination of the local school board in selecting the site. No such confirmatory action was taken by the board of education in reference to the property which was the subject of the contract in this case until March 19, 1902, long after the expiration of the period within which the defendant undertook to convey the property. Under these circumstances I think the defendant failed to make out any justification for her refusal to carry out the contract.

It appears that the preliminary approval of the site by the school board of the borough of Brooklyn had been given on the 5th day of February, 1901, two days before the contract was executed, and it is suggested in behalf of the appellant that this was the approval contemplated by the parties. Such a view seems to me hardly reasonable, inasmuch as if that approval had been all that was in contemplation it is difficult to see why the defendant entered into the contract at all. The approval which the parties had in mind must have been an act or series of acts to be performed subsequent to the date of the contract (February 7, 1901), and prior to the 1st day of April, 1901.

’ The proof was sufficient to justify the finding of the jury to the effect that the property was really worth in the market $750 more than the consideration which the plaintiff was obligated to pay under the contract. There was no error in adding interest to this amount. Interest is allowable in an action to recover unliquidated damages for the breach, of an executory contract of sale where the property lias a market value. (Sweeny v. City of New York, 173 N. Y. 414.)

I advise an affirmance of the judgment and order appealed from.

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

Judgment and order affirmed, with costs.  