Feldman v. Fraiman

No opinion. Beldock, P. J., Christ, Brennan and Munder, JJ., concur; Hopkins, J., concurs in the result, with the following memorandum: It is time that the difference in treatment, depending on whether an action is in law or in equity, of a failure to perform on the closing date in a contract for the sale of real property (in the absence of a provision making the date of closing of the essence of the contract) be abolished (cf. Grady v. Balmain, 28 A D 2d 702). The equitable rule that a notice making time of the essence must first be given to the party to be charged should be adopted, no matter what the form of the action may be. I vote to affirm here, however, because plaintiff failed to show his ability to perform within the time he requested for the adjournment of the closing.