
    Frieda Polebaum et al., Respondents, v. National House & Farms Association, Inc., Appellant.
   Appeal, by permission of the Appellate Division of the Supreme Court in the first judicial department, from a determination of the Appellate Term of the Supreme Court in the same judicial department, entered January 19,1950, which affirmed a judgment of the City Court of the City of New York, New York County, in favor of plaintiffs.

Per Curiam.

We think that the trial court correctly submitted to the jury as the principal issue of fact in this case the question whether or not the plaintiffs had advised the defendant before execution of the contracts that they wished to erect a “ year-round ” as distinguished from a summer ” home. The word “ building” as used in clause “ Seventeenth ” of each agreement is ambiguous in view of the claims of the parties.

Under the circumstances, however, we hold that it was error to have prevented examination of the witness Polebaum as to his knowledge of the Cohen letter dated April 15, 1947. This letter was clearly inconsistent with the claims of the plaintiffs on the trial as to their reason for discontinuing payments on the lots. The case was extremely close on the facts. For this reason we consider that the error was sufficiently serious to require a reversal of the judgment and a new trial.

We also think that the provisions of clause “ Seventeenth” of the contracts of purchase relating to the erection of a building are separable, so that the indefinitness as to terms and price of such building does not vitiate the agreements for the purchase of the land. In our opinion, however, each contract implies a covenant that section 4 of the development would be ready for the erection of a building not later than May 30, 1947, unless prevented by governmental regulations or the nonavailability of materials. On the new trial it will be for the jury to decide whether nonperformance by the defendant in this regard was excused.

We have no occasion for passing on the question raised as to the proper measure of damages in view of the fact that no exception was taken to the charge in this respect.

The determination of the Appellate Term and the judgment of the City Court should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Dore, J.

(dissenting). Whether plaintiffs as buyers or defendant as seller breached the contract was essentially an issue of fact for the jury and depended upon the júry’s acceptance or rejection of the credibility of witnesses. These basic issues the learned trial court properly left to the jury and the jury obviously resolved all such issues against defendant.

The trial court properly precluded defendant from examining Mr. Polebaum regarding Mrs. Cohen’s letter. The contracts were separate and the causes of action separate and neither party was agent for the other. Mrs. Cohen’s letter was an admission against interest; but, as it was not in the pleadings, it was not conclusive and like all such admissions explainable and the court permitted a prolonged cross-examination of Mr. Cohen regarding the contents of the letter and also permitted cross-examination of Frieda Polebaum on the letter.

The contracts in my opinion were indivisible and should be construed as a whole and clause seventeenth should be considered with the rest of the agreement and not as a separate contract. The very presence of that clause indicates that the plaintiffs were not interested solely in the purchase of undeveloped lots. The defendant that drew the contract included that clause and now says the clause is meaningless and that “ Where one side to a contract cannot be held neither can the other.” Nevertheless defendant demands judgment on its counterclaim for additional large sums of money from plaintiffs.

The testimony is voluminous; the trial court granted a wide latitude to both parties; and the result reached by the trial court and unanimously affirmed by the Appellate Term is right and should not be disturbed. Defendants drafted the contract and should not on the theory that it is meaningless keep plaintiffs’ money and give them nothing for it.

Accordingly, I dissent and vote to affirm.

Cohn, Callahan, Van Voorhis and Shientag, JJ., concur in Per Curiam, opinion; Dore, J., dissents and votes to affirm in opinion.

Determination of the Appellate Term and judgment of the City Court reversed and a new trial ordered, with costs to the appellant to abide the event.  