Opinion
October 5, 1967
Judgment unanimously modified, on the law and the facts, to provide that, in the event that the sale provided for in subdivision A does not realize the upset price of $211,591.47 together with interest at 6% per annum computed from March 1, 1966, and estimated expenses of the auctioneer, the difference between the said upset price and the amount of the highest bid received by the auctioneer shall be added to the option price payable by defendant Thomas Epstein under subdivision B, or in the event said option is not exercised and the property therein provided to be sold at auction is so sold, the said difference shall be added to the sum of $93,366.36, together with interest at 6% per annum computed from March 1, 1966, as the sum payable to 25 River Road Corporation before any division of the surplus is made. In the event that the sale provided for in subdivision A does realize the upset price therein provided but the sale provided for in subdivision B does not realize the upset price for the property described in said subdivision, the difference between the said upset price and the highest price bid at the said auction shall be added to the sum payable under subdivision A of this judgment to 25 River Road Corporation before any division of surplus is made; and as so modified the judgment is affirmed, without costs or disbursements to any party as against the other. We are in accord with the basic disposition made at Special Term and for the reasons stated by the learned Justice. The modification is called for because of the following facts. The parties entered into a venture which, as it developed, involved the purchase of a tract of land. A portion of the tract, provided for in subdivision A of the judgment, was developed. The balance, provided for in subdivision B, was not. Although the parties had different interests in the respective portions of the tract, the acquisition of the entire tract was part of a single transaction and relationship. Special Term's disposition was to divide the proceeds of the property according to the contract relationship of the parties, giving credit to the plaintiff for the sums expended by him in the acquisition and development of the properties. It may eventuate that either the developed or the undeveloped property will realize a surplus over the amount invested in it and the other portion of the property could only be sold at a loss. In that event the plaintiff should be entitled to be made whole from the proceeds of the entire property, and the modification is designed to accomplish that result.
Concur — Steuer, J.P., Tilzer, Rabin, McNally and McGivern, JJ.