Opinion
November 6, 1967
Order of the Appellate Term, Second Judicial Department, dated March 17, 1967, affirmed, without costs. No opinion.
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.