
    Sigmund Leinhardt, Plaintiff v. Frank Solomon, Defendant.
    (Supreme Court, New York Trial Term,
    December, 1907.)
    -Vendor and purchaser — Performance of the contract — Time for performance.
    Specific performance — Performance by complainant — Time for performance.
    Where, the vendor in a contract for the sale of real property having been unable to place mortgages thereon in accordance with the terms of the contract on the day fixed for closing the title, several adjournments were had by consent of the vendee, and, finally, an adjournment for a month, at the time of making which the vendee insisted that on the day to which the adjournment wras then had the contract should he performed without further postponement, and where, on that day, the vendor being still unprepared, the vendee refused to consent to another adjournment,the vendee thereby made time of the essence of the contract and the vendor could not thereafter maintain an action for specific performance; and, in such an action, the court should decree the return of the money paid by defendant on the contract, with interest and his reasonable counsel fees and disbursements incurred in the examination of the title.
    Action by the vendor for the specific performance of a contract for the sale of real property.
    Rosenbluth & Silverman, for plaintiff.
    C. Bittner, for defendant.
   McCall, J.

In this case I do not see how the conclusion can he escaped that the defendant must prevail. While it is true that the sale contemplated hy this contract involved buildings in process of construction there is no trouble under such circumstances in determining on a probable date to be named in á contract, when in all likelihood they (the structures) will be in a condition of completion when the owner will be able to transfer and the prospective purchaser will be willing to take, and that under fair inference in this case was the precise condition. At any rate it was not asserted nor is there any proof to sustain any contention that it was because of any unfinished condition of the structure that the parties were unable to close at the various dates fixed. Several adjournments in the closing were had, all at the request of the plaintiff, who seemed to be unable to place the mortgages on the title his contract called for, until finally in June, when the parties met to close on the adjourned day fixed by stipulation, the. defendant consented to one more, and, as he asserts, final adjournment to allow plaintiff to get ready. A month’s delay thereafter ensued and on the day fixed the parties again met; the plaintiff, still unable to perform, requested further delay, which was positively and unequivocally refused by the defendant, and they separated, the title not having passed. I am of the opinion that the attitude of the defendant assumed by him in granting the adjournment to July sixth and which I find to be fully established by the proof offered, made time of the essence of the contract, and in his subsequent action on July 6, 1906, the final stipulated date of adjournment, he was clearly within his legal rights and justified in his refusal to take. It will be seen also that an actual tender was not made of the deed till September, 1906. And though time were not of the essence of the contract, I cannot figure from the evidence in this case how one could find the actual delay upon the part of the plaintiff in preparing himself to perform to be aught else than both unreasonable and unjustifiable. I am not overlooking the fact that at the time of tender there was a mortgage burdening the title which was not actually discharged of record till during the progress of the trial, but as to this I am quite satisfied to state that I would not regard that of any moment if the other conditions- were favorable to plaintiff’s contention. On the score of the ten-day requirement found in the contract it is too patent to require discussion that this obtains only in the event of defendant’s concluding to reject title for some alleged defect which he would assert prevented the plaintiff in his judgment from giving good title and could hardly be exacted of him in this case when he always stood ready to perform, but was prevented by the plaintiff’s own conceded inability to transfer. It, therefore, follows that judgment must be rendered dismissing the complaint and decreeing the return of defendant’s money paid on contract, with interest from July 6, 1906, and providing for the payment of the reasonable counsel fees and disbursements incurred in the examination of title.

Ordered accordingly.  