
    Thomas J. Coyne, as Administrator, etc., of Mary Ellen Boyle, Deceased, Respondent, v. Valley Stream Realty Company, Appellant.
    First Department,
    March 19, 1915.
    Contract — contract for purchase of real estate construed — waiver of option by vendor to declare whole sum due or to avoid contract upon default by purchaser — right of personal representatives of purchaser to recover payments made.
    A contract for the purchase of real estate reserved the right to the vendor, in case of default in payment of the monthly installments, either to declare the whole sum due or to avoid the contract and retain as damages all money paid thereunder. It also conferred the privilege upon the executor or administrator of the purchaser, in case of her death before the completion of the contract, to recover the sums paid thereunder, with interest, “provided no payment hereunder is in arrears.” The purchaser did not pay the installments regularly, so that at her death she was in arrears about $900, but the vendor had not exercised its option to treat the whole purchase price as immediately due or to declare the contract avoided.
    
      Held, that although the receipt of a monthly installment during the month prior to the purchaser’s death, and the act of crediting it upon payment for the previous month constituted a waiver of the vendor’s option to declare the whole sum due or to avoid the contract for any default prior to the latter date, it did not release the purchaser from her obligation to pay the installments which were then overdue. Hence, at the time of the purchaser’s death there were “payments in arrears,” and, therefore, her personal representatives are not entitled to recover payments by her under the contract.
    Appeal by the defendant, Valley Stream Eealty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of January, 1915, upon the decision of the court after a trial at the New York Trial Term, a jury having been waived.
    
      Benjamin Reass, for the appellant.
    
      Richard B. Hand, for the respondent.
   Scott, J.:

The action is by the administrator of Mary Ellen Boyle, deceased, to recover the sum, with interest, paid by decedent to defendant upon a contract for the purchase of real estate.

On June 22, 1907, Mary Ellen Boyle, under the name of Leila Boyle, signed a contract to purchase from defendant a lot of land at Valley Stream for the sum of $3,030 to be paid $303 down on signing the contract and $30 in each and every month following the date hereof, until said principal sum with interest at six per cent per annum on all • unpaid balances, and all taxes or other assessments made or levied after one year subsequent to the date hereof are fully paid.”

The contract contained the following clause:

‘ Second. That prompt performance and time are the nature and essence of this contract and each of its conditions, and, therefore, if default of payment is made of any one of said monthly installments of said principal sum for a period of sixty days after it becomes due, or if said party of the second part fails to perform any other of the agreements on her part herein contained, the balance of the principal sum then remaining unpaid shall immediately become due and payable; or at the option of the party of the first part, all rights of the party of the second part under this agreement, and all right title, interest and claim in and to said described premises, shall become, void and of no effect; whereupon the said party of the first part shall be released from all obligations hereunder; and all moneys theretofore paid hereon shall be held as liquidated damages by the party of the first part without notice. In the event of the death of the party of the second part, before the completion of this contract, and provided no payment hereunder is in arrears, the party of the first part shall upon demand pay to the heirs, executor or administrator of the said party of the second part, upon proper proof of such death, with full surrender and release of this contract and all rights thereunder, ' all money paid hereon with interest at 4 per cent per annum; but no assignment hereof shall be made by the party of the second part without the written consent of the party of the first part.”

The decedent did not pay. the installments regularly and many she did not pay at all, so that at her death she had paid about nine hundred dollars less than she would have paid if she had lived up to her contract and paid thirty dollars each month. The defendant, however, never exercised its option to treat the whole purchase price as immediately due and payable, or to declare the contract avoided. Decedent died July 14, 1914. Prior to that, defendant, or its collecting agent, had written her an urgent letter calling her attention to the fact that the arrears accumulated on principal were four hundred and thirteen dollars, on interest one hundred and fifty-three dollars and eleven cents and on taxes thirteen dollars and ninety-eight cents. The letter insisted that something be done to reduce this excessive. arrearage, and suggested an increase of the monthly installments from thirty dollars to forty dollars. She apparently sent a payment of thirty dollars which was credited for the month of May, 1914. After her death it appears from a letter addressed to her that defendant then held, and must have held at the time of her death the sum of thirty dollars rebate on taxes paid prior to 1913. This was afterwards credited to her as payment of the August, 1914, installment.

The plaintiff now seeks to recover from defendant the amounts which decedent had paid, with interest.

Referring back to the clause in the agreement under which this claim is made it will be seen that it is divisible into two parts, one of which states the rights reserved to defendant in case of default in payment of the monthly installments, and the other of which states the right reserved to Miss Boyle’s estate in case she dies and is not then in arrears. These provisions are clearly separable and independent (Gail v. Gail, 127 App. Div. 892), and so all parties concede. The right reserved to defendant is to either declare the whole sum due, or to avoid the contract and retain as damages all money paid thereunder in case of default in the payment of any monthly installment. Defendant never attempted to exercise either of these options, and probably the acceptance of a payment of thirty dollars in June, 1914, and crediting it as a a payment of the installment falling due in May effectually waived the right to exercise either of its options for any default committed prior to May.

The second part of the clause was, as has been said, as entirely independent of the first part as if it had been written into the contract as a separate clause, and it must be considered by itself. It conferred a privilege upon Miss Boyle’s personal representative, in case of her death before the completion of the contract “provided no payment hereunder is in arrears.”

It seems clear that the $900 which should have been paid, but had not been, was “in arrears.”

It had become payable, had not been paid and consequently was in every sense of the word “ in arrears.”

The receipt of thirty dollars in June, and the act of crediting it upon the payment due in May, while it constituted a waiver of certain privileges which the contract gave to defendant, did not pay, nor release Miss Boyle from the obligation to pay the installments which were then overdue. Consequently at the time of Miss Boyle’s death there were payments “ in arrears” and the condition did not exist which would, under the contract, entitle her personal representatives to recover what she had paid.

The judgment appealed from must be reversed and the complaint dismissed, with costs in all courts to the appellant.

Clarke, Laughlin, Dowling and Hotchkiss, JJ., concurred.

Judgment reversed and complaint dismissed, with costs to appellant in all courts. Order to be settled on notice.  