
    Henry Roth, Appellant, v. Max Goodman and Charles I. Mandel, Trading as Goodman & Mandel, Respondents.
    (Supreme Court, Appellate Term,
    January, 1907.)
    Vendor and purchaser — Default and its effect — Refusal of purchaser to carry out sale — Recovery of part payment.
    Where plaintiff made a deposit upon the purchase of real property, for which a receipt was given that comprised all the requisites of an enforceable contract, and failed to carry out the terms of his agreement he cannot recover the deposit.
    Dayton, J., dissented.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, fifth district, borough of Manhattan, rendered in favor of the defendants.
    
      Emanuel Klein, for appellant.
    Coombs & Wilson, for respondents.
   Per Curiam.

The stipulation extending the time of the trial justice was actually made October first. Inadvertently the signed stipulation was dated October second. Judgment was rendered October eighth. Jurisdiction was held by this stipulation. Action for money had and received; submitted on stipulated facts. Judgment was for defendants. By the receipt in evidence defendants received from plaintiff on May 25, 1906, $200 as a deposit on account of the purchase by him of specified premises with dimensions. Price $46,500. Cash $10,500. Subject to first mortgage of $27,000, at five per cent, for about three years. Purchase money mortgage $9,000, at six per cent., payable in installments with a subordination clause and privilege to pay off. Certificate of tenement-house department to be furnished at closing of title and delivery of deed. Party wall on one side. More formal contract to be drawn Monday, May 28, 1906, at one to two p. m., at the office of defendants’ attorneys. Commission $465; $200 to purchaser, $165 to Mr. leaver and $100 to one Deutsch. $800 more to be paid ,on said day. Deed to be delivered between June 15 and 20, 1906. It would seem that said receipt was an enforceable contract for the sale of real estate. It is conceded that the plaintiff failed to appear at the time and place named for the execution of the formal contract provided for in the receipt and “ has neglect-ed to carry out and perform the terms of said agreement between the plaintiff vand defendants as embodied in said receipt.”

Under such circumstances the plaintiff cannot recover (Abramowitz v. Gray, 50 Misc. Rep. 638), and the judgment must be affirmed.

Gildersleeve and Blanchard, JJ., concur.

Judgment affirmed, with costs.

Dayton, J. (dissenting).

It would seem that the receipt was an enforceable contract for the sale of real estate. It contains no forfeiture nor does it appear that either party was at fault, unless by the mutual neglect to execute a more formal document, which was not prepared and which was not a necessity. Certainly the time within which the performance ivas required had not expired when this action was brought. The stipulation that defendants attended at the time and place and were ready and willing to carry out the terms and conditions of said contract and that plaintiff has neglected to carry out said contract does not entitle the defendants to forfeiture, and there is no suggestion that the defendants have suffered damage.

The judgment should, be reversed and a new trial ordered, with costs to appellant to abide the event.

Judgment affirmed, with costs.  