Opinion
February 3, 1966
Determination of the Appellate Term reversing the judgment in favor of the defendant, entered in the Civil Court on the 13th day of July, 1964, unanimously affirmed, without costs or disbursements to either party. In reversing the judgment in favor of the defendant, the Appellate Term said: "The record before the court makes it abundantly clear that neither the purchaser nor the seller regarded the scheduled adjourned date of September 16 as final and binding." We agree with that conclusion. It seems that, thereafter, the parties attempted to fix a closing date. In order that it may gain a tax advantage the defendant insisted that the closing be held sometime after the end of the year, i.e., in 1964. While the plaintiff was willing to close on any date within a reasonable time, granting each party sufficient time to prepare for closing, the defendant refused to do so, insisting on a closing only after 1963. In the circumstances, the defendant having absolutely refused to close within a reasonable time, it became unnecessary for the plaintiff to make a tender of performance in order to be entitled to recover. We arrive at this conclusion without reaching the question as to whether the title was good or bad, and without reaching the question as to whether the defendant could have secured a title company to indemnify the plaintiff's title company against any loss if it insured title.
Concur — Breitel, J.P., Rabin, Valente, Eager and Witmer, JJ.