Berfond v. Griffin

Judgment reversed upon the law, and new trial granted, costs to abide the event. We are of opinion that the memorandum of purchase, plaintiff’s Exhibit 1, cannot be regarded as an option. It is sufficient, as a contract of sale, to bind defendant; and being so regarded, we think the request of plaintiff for an adjournment was a reasonable one, and should have been complied with. Kelly, P. J., Manning, Young and Lazansky, JJ., concur; Kapper, J., dissents, and votes to affirm, upon the ground that equitable principles do not apply under the circumstances here shown, the vendor having parted with the title after the time fixed for the mailing of the contract, and before the action was brought; and that as time was of the essence of the contract, even assuming that the paper was not an option, but was a contract, the default in making the down payment was wholly that of the vendee, and released the vendor from any obligation to perform.