Westchester & Bronx Realty & Development Co. v. Whitlock

This is an action to recover a deposit of $2,500 on a contract for the sale of real estate, in performance of which contract it is alleged that plaintiff’s assignor was ready, willing and duly offered to accept and take a deed in fee simple to the premises, but refused to accept a deed tendered to him by defendants because said deed as tendered would not and did not convey said premises free from all incumbrances, as by said contract provided.

There is no proof of any tender or readiness to perform on the part of the plaintiff’s assignor. Defendants tendered a deed and noted plaintiff’s default on *491the contract. Defendants sought to introduce evidence that plaintiff’s assignor did not have the $30,500 in cash required to be paid as the balance of the purchase price; that he never offered performance and was unable to perform, which evidence was excluded and defendants excepted. There is proof of an encroachment by a wooden fence and by an adjoining two-story frame building, but this objection was not raised until after plaintiff’s assignor had refused to take title and after his default had been noted. The defendants’ proof, to the effect that plaintiff’s assignor at the time of the default stated that he refused to take title because he had been unable to negotiate a loan and could not raise the money, was not contradicted, nor was the assignor’s admission of his default under the contract explained.

It was error to exclude proof that plaintiff’s assignor was unable to perform. To put the defendants in default it was necessary either that plaintiff’s assignor should made a tender which they refused, or else that there was some incumbrance on the property which could not be removed. Alpern v. Farrell, 133 App. Div. 278, 280, 281; Ziehen v. Smith, 148 N. Y. 558. New objections to the title made after the default are not available to defeat the defendants ’ right to retain a forfeited deposit, unless it is shown that the objection could not have been obviated by the seller. Higgins v. Eagleton, 155 N. Y. 466, 472-474. It does not appear that it was beyond the power of the defendants to remove the encroachments of which plaintiff now complains.

Gerard, J., concurs in result; Page, J., concurs on the first ground stated.

Judgment reversed and a new trial ordered, with costs to appellants to abide the event.