Opinion
March 8, 1912.
Arthur Furber, for the appellant.
Herbert R. Limburg, for the respondent.
The action is upon a contract entered into between the defendant and the plaintiff's assignor whereby in payment for certain stocks, bonds and choses in action transferred to him and in settlement of certain disputes, the former agreed to pay the latter the sum of $3,000 in cash, and to procure a conveyance of fifteen acres of land, to be selected by the latter out of a larger tract owned by a third party, a corporation, and whereby the defendant agreed in default in procuring such conveyance to pay the plaintiff's assignor the sum of $3,500 in lieu thereof. It is alleged that the defendant paid the sum of $3,000, but has failed to cause said conveyance to be made or to pay the stipulated sum in lieu thereof.
In a former action between the same parties a demurrer to the complaint was sustained on the ground that the complaint did not allege the selection of any particular fifteen-acre plot. ( Jacocks v. Morrison, 129 App. Div. 285.) The present complaint, after alleging the assignment of the contract to the plaintiff, avers that the plaintiff, being willing to accept any fifteen acres within the plot of land in question, demanded of the defendant that he perform his contract by conveying to her fifteen acres of said land; that the defendant failed to comply with the demand, and that thereafter her assignor caused fifteen acres to be selected and located, and that notice of a selection with a description thereof was served upon the defendant with a demand that he convey or cause the same to be conveyed to the plaintiff.
The objection to the present complaint is that it fails to state the time when said demands were made. No doubt, the complaint is indefinite in that respect. But that is a defect to be cured by motion, not by special demurrer, as was the practice when Osborne v. Lawrence (9 Wend. 135), relied upon by the learned court at Special Term, was decided.
If the plaintiff would have to prove a selection and demand within a stated or a reasonable time in order to recover, an allegation to that effect would doubtless be essential to a statement of her cause of action. But this is not the case of an executory contract of purchase and sale as was the case of Pope v. Terre Haute Car Manufacturing Co. ( 107 N.Y. 61), also relied upon by the learned court at Special Term. The defendant received the consideration for which he agreed to procure a conveyance from a third party or to pay in lieu thereof the sum of $3,500. A selection of the fifteen acres to be conveyed had to be made before the defendant could be put in default, but a failure to make the selection within a reasonable time or within a definite time, if one was stated in the contract, would not necessarily defeat the right of the plaintiff or her assignor to recover. No doubt, as the respondent contends, he could not be required to be forever in a position to procure a conveyance from a third party. But if there be any reason to excuse performance on his part, it is a matter of defense which we cannot pass upon without knowing the facts. The point which we now decide is that the plaintiff or her assignor did not necessarily incur a forfeiture by failing to make a selection within either a reasonable or a stated time.
The interlocutory judgment should be reversed, with costs, and the demurrer overruled, with costs, with the usual leave to the defendant to answer on payment of said costs.
INGRAHAM, P.J., McLAUGHLIN and LAUGHLIN, JJ., concurred; DOWLING, J., dissented.
Judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs.