
    Louis Rosenberg and Philip Sherry, Respondents, v. Jennie Feiering, Appellant.
    Second Department,
    July 23, 1907.
    Beal property -i- vendor and purchaser.— action to recover, earnest money — refusal to take title not justified.
    In an action for specific performance asking also a return of the earnest money, the vendee’s complaint justified his refusal to take title only on the ground, ■ that the deed tendered was not in accordance with the contract in that the mortgages on the property as recorded were past due at á time prior to that agreed and because the interest -was six percent instead of .five. At trial it appeared that, to the knowledge of the vendee the time of payment of the mortgages had been extended and the interest, reduced to five per cent. Although said extension contained a clause not specified in the contract providing that ■ the mortgages were to become due on notice if the Legislature ' enacted a mortgage tax, it was not alleged or argued that the title was refused on that ground until;the court announced its intention to give judgment for' the defendant,
    
      Held, that the latter ground for refusing title had been waived and could not be advanced at trial as the vendor had he been warned of the objection might have obtained the removal of said clause; «
    That, although .the defendant had put in evidence the instrument containing the . mortgage ■ clause, he could' not be held' to have failed to object to the said grounds of recovery advanced' by the; plaintiff which was mere matter of argument on an issue not taken by the complaint. One cannot take an Objection to a matter of argument. '
    
      Appeal by the defendant, Jennie Feiering, from a judgment of the County Court of the county of Kings in favor of the plaintiffs, entered in the office of the clerk of said county on the 15th day of December, 1906, upon the decision of the court.
    
      Isidor Cohn, for the appellant.
    
      Isaac Miller, for the respondents.
   Woodward, J.:

This action was brought by the vendee against the vendor for the specific enforcement of a contract of sale, or, in the alternative, for the recovery of the deposit money and expenses incurred. The trial court awarded a money j'udgment in lieu of specific performance. . The contract was made March-27, 1906, and provided for a sale of the premises subject to two mortgages, bearing interest at the rate of -five -per cent, now payable December 20,. 1907, and to assign agreement executed by Miller and exhibited to vendee.” It appeal’s that the mortgages bore interest at six per cent and that, by their' terms, they had become due and payable in 1892, but- that the mortgagee, Donald,, had by an instrument in writing, not recorded, extended the time of payment until December 20, 1907, at five peí* cent. This instrument also contained a mortgage tax clause,- to the effect that if the Legislature should enact such' a tax law, then the mortgagee should have the right to require payment of the mortgages upon giving three months’ notice, unless, etc. The mortgages of record contained no such clause. The Miller instrument (referred to) was an agreement by one - Miller,, defendant’s predecessor in title, to the effect that he would obtain a further written extension of the term of the mortgages for two years from December 20, 1907. It recited the prior extension executed by Donald, but contained no reference to any mortgage tax clause. The Miller instrument was produced on the. day the contract of sale was made, and was read by plaintiffs’ attorney. But the Donald instrument, containing the mortgage tax clause, was not produced or shown to plaintiffs before the day fixed for closing the sale. The complaint alleges that the plaintiffs declined to accept a.deed tendered by defendant “ because said deed did not' * * * convey * * * said premises in accordance with the terms of said ■ contract in that the first mortgages referred to in said contract were of record fast due since 1892, and the rate of interest provided in the- same was 6 per cent.; that by reason thereof defendant was unable to convey said premises according to the terms of said contract.” The- complaint makes no mention of the fact that the term of the mortgages had been extended by the Donald instrument, because,- it would seem, that instrument was ■ not recorded. ' Both sides submitted the case to the court upon the pleadings and' arguments, and decision was reserved. Subsequently.the judge handed down a memorandum stating that he would take testimony to decide what agreement-was referred to by the contract, which was -to be assigned as pleaded in the answer! Defendant gave the evidence- required, but plaintiffs called no witnesses. Upon the trial * plaintiffs’ Counsel stated that he found the mortgages past due sihce 1892,- “ and .1 rejected the title on these two extensions. *■ * '* I claim that we should not take it subject to the extensióhs; they sold us the property subject to mortgages running up to December 20th,. 1907,” etc. After the court had intimated that it would find judg-'■ ment. for defendant, the counsel, for the first time, called the court’s ■ attention to the mortgage tax clause, and said: “ I raise this point as the main issue in the cáse, if we were bound to take these extensions, we were not bound to'-take-it unless it followed the tenor of the mortgaged’ Thereupon the court changed its former opinion ■ and-rendered judgment in favor of the plaintiffs, upon this ground alone, expressly stating, however, that all of-.the facts were found in defendant’s favor, “except that your'contract embodying the agreement does, not cover a- clause in the extension, which was not shown to them,.-providing for payment.- in case any mortgage tax laW is passed by the Legislature.” - Such a tax law was passed May 22,'to take effect July 1, 1906.

It- thus appears from the allegations of the complaint and the . statements of counsel that the title was not rejected because of the tax clause contained in the extensions, but because of the extensions themselves. In other words,, .because the mortgages “were of record past due since 1892,” and' that a written extension,- not recorded, was not a fulfillment of the contract.. Thé only objection to the title stated in the complaint, and which was submitted to the court for decision, related to the claim that the mortgages were past due and bore six per cent interest. Upon the issue raised by the pleadings the defendant was entitled to judgment, since the mortgages had been extended, at five per cent, and were not past due, of which the plaintiffs were chargeable with notice. No objection was ever raised to said tax clause, so far as it appears from the record. If the specific objection had been made, the defendant might have procured a modification of the extension instrument by eliminating that clause, and should have been afforded opportunity to do so, since she was “entitled to an adjournment to June 15, 1906, or earlier, if she so elects,” by the terms of the contract. Clearly, this specific objection to the tax clause was an afterthought, presented for the first time on the trial in the manner heretofore stated, to the surprise, if not astonishment, of the defendant. The plaintiffs should be deemed and held to have waived the specific objection by absolutely refusing to accept the extensions and utterly ignoring them in the complaint. Indeed, it is evident that the tax clause was not considered in the matter of objections to title, and the title wouid still have been rejected if the clause had been eliminated.

For these reasons the ease of Schiffy. Tamor (104 App. Div. 42) is not in point.

Eespondents say (Point 2): “ The case was once submitted on the • arguments and pleadings. The defendant then conceded that the boundage clause in the extensions was one of the objections raised on the date of closing title.” There is not a word in the record to support this statement.

“ Besides, the defendant never made any objection nor did she take any exception to the admission of this point on the trial. On the contrary, defendant discussed this objection and submitted it to the determination of the court. Surely, she should not now be heard to object to it on appeal.” The point was not “discussed” by defendant, so far as the record shows, and we assume that the record was not intended to present all the arguments advanced. Nor could defendant take objection or exception to the admission of this point — a matter of argument and not of evidence. The point was contained in the instruments put in evidence by Hr. Cohn, and surely he would not object to his own evidence. The case was submitted on the pleadings and documentary evidence and some testimony of Mr. Cohn. And plaintiffs failed to show that they ever took this specific objection to title; and, if they did, it is not charged as a ground of complaint.

The judgment should be reversed and a new trial ordered, costs to abide the final award of costs.

Jenks, Hooker, Gaynor and Rich, JJ., concurred.

Judgment of the County Court of Kings county reversed and new trial ordered, costs to abide the final award of costs. 
      
       See Tax Law (Laws of 1896, chap. 908), § 390 et seq.. added by Laws of 1905 chap. 729, and amd. by Laws of 1906, chap. 582.— [Rep.
     