Opinion
May 13, 1971
Appeal from a judgment in favor of the respondent entered in Saratoga County on a decision of the court without a jury at a Trial Term which granted specific performance of a realty contract. At the time of the trial, the defendants James H. Howard, Jr., and Sr., were deceased and the action was discontinued as to them. Appellant Maude G. Howard and respondent's assignor entered into an option, later exercised, by which appellant agreed to sell two parcels of land situated along the Northway in Saratoga County, New York, title to close on or before July 1, 1964. By the terms of that contract, appellant was to convey a marketable title subject "to all restrictions, easements, and conditions of record". Before the date set for closing and at various times throughout the negotiations, respondent objected to two contracts for a term of years which allowed sand to be removed from the premises. The appellant tried twice to rescind the contract with the respondent by refunding the down payment but respondent refused and insisted she discharge the sand contracts before closing. The respondent's position that it was not bound to accept the title was untenable. Having agreed to buy subject to liens or easements, it could not compel appellant to discharge these recorded contracts at her own expense. ( Lancaster at Fresh Meadow v. Suderov, 6 Misc.2d 12, affd. 5 A.D.2d 1015.) Nevertheless, the closing was adjourned from time to time by written stipulations signed by James H. Howard, Jr., for the appellant, "without prejudice" to her rights. Appellant apparently never changed her position that the title was sufficient under the contract, but the respondent insisted on some adjustment. Finally, at a closing scheduled for November 1 (a Sunday) but held on November 2, 1964, the respondent attempted to close, but no one appeared on behalf of the appellant. The trial court found that at that time the respondent intended to close as required under the contract and to accept the responsibility for the title as offered. The appellant contends that she may rescind the contract because respondent failed to perform on time. Time is not of the essence of a contract unless the parties make it so. Appellant, having waived the requirement that title close July 1, 1964 as required in the contract, cannot rescind on account of respondent's delay without having demanded performance within a reasonable specified time. ( Taylor v. Goelet, 208 N.Y. 253, 258.) She acquiesced in the delay and voluntarily consented to adjournments from time to time and, therefore, has waived her right to hold respondent in default under the terms of the contract. ( Ring 57 Corp. v. Litt, 28 A.D.2d 548.) Judgment affirmed, without costs. Herlihy, P.J., Reynolds, Greenblott, Sweeney and Simons, JJ., concur.