
    William Tabachnick, Respondent, v. Leopold Brand, Appellant.
    Second Department,
    January 10, 1908.
    Beal property — vendor and purchaser — contract construed.
    An informal contract for the sale of lands provided in substance that the consideration of $80,000 be paid, $500 in cash on the signing of the agreement, $1,000 additional on the signing of a formal contract, balance on the deed day as follows: $4,500 in cash, the balance of $24,000 to he paid by raising whatever amount the vendee could raise on a first mortgage, the remaining balance to be secured by a purchase-money second mortgage. The vendor had an option of accepting $15,000 in first mortgages in lieu of the amounts to be paid in cash. In an action to recover the earnest money paid,
    
      Held, that the vendee was not j ustified in refusing title because the vendor refused to have the formal contract so drawn as to bind him to get mortgages from a title company amounting to $15,000 to be applied as part of the purchase price.
    Appeal by the defendant, Leopold Brand, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, .rendered after a trial before the court without a jury.
    The action was to recover the sum of $500, which the plaintiff had paid to the defendant at the time of receiving of the latter the following written instrument signed by him, viz.:
    
      ■ “ Received, from Mr. Tabachnick the sum of Five hundred ($500) Dollars for the sale-of the premises Nos. 370^37'S Watkins Street, Brooklyn, New York. T.lre price agreed iipoñ is $30,000, and the expense whatsoever in reference to the said premises charged''by the Title Guarantee & Trust Co., of Brooklyn, New York. The buyer,, William Tabachnick, has the right to take the, loan from, the Title Guarantee & Trust Co.; or from anybody else in any sum on his own expense, and to pay the .same over to the seller, Leopold Brand, or the said Leopold Brand can accept the mortgage to be given by the Title Guarantee &■ Trust Co.-, of Brooklyn, N. Y., for $15,000, and to be three mortgages covering same premises.
    “The contract is to-be made June 4th, 1906, at the-offices of Reich & Brand, 320 Broadway, New York City, at 1:30 p. m. To pay at the time of executing contract, an additional amount of $1,000. Title to be given on June 10th,'1906, four thousand five hundred ($4,500) Dollars at the delivery of the deed, and the difference between the amount of the 1st mortgage and the sum unpaid on the purchase price of $30,000, then and in that event., the buyer, William Tabachnick, -is to give a purchase money mortgage for the balance due at six per cent per annum, due On August 10th, 1906. The property must be free and clear of all incumbrances or liens. -
    “ Dated, N. Y., May 28th, 1906.
    “Wm. Tabachnick.
    “LEOPOLD BRAND.”
    
      Sanders Shanks, for the appellant.
    
      Fromme Brothers, for the respondent.
   Gaynor, J.:

The judgment must be reversed. The contract given by the defendant to the plaintiff, when the latter paid the former, the $500 on account of the purchase price of the land, appointed a day for the making of a more formal coritract, and the payment of an. additional sum of $1,000 by the plaintiff. When the parties met the plaintiff demanded that the formal contract be drawn to bind the defendant to get three mortgages of the Title Company on'the laud for $15,000, i. e., one on each -of the three lots for $5,0.00, and t,, be paid on the purchase ¡price; and because the defendant wo nib not give such a contract the plaintiff ref used to go on and demanded back the $500 he had paid. He was not entitled to such a contract. The terms fixed by the informal contract were, in sum and substance, that the plaintiff should pay $30,000 for the land, by paying in cash $500 on the signing thereof, $1,000 additional on the signing of the formal contract, and the balance on the deed day as follows, viz.: $4,500 in cash, and the balance of $24,000 by raising what he could on first mortgage on the property, and the balance by a purchase-money second mortgage on the property to the defendant; or, the defendant had the option of accepting $15,000 in first mortgages on the said property in lieu of that amount of the cash to be paid as aforesaid. This option evidently contemplated that the defendant might be willing to accept that amount in mortgage instead of the plaintiff getting that amount, or more, or more likely less, of the title company (or some one else) on mortgage.

The judgment should be reversed.

Jenks, Hooker, High and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  