Opinion
April 30, 1930.
Appeal from Supreme Court of Erie County.
Leo F. Donnelly, for the appellants.
Michael P. Geraci [ Henry Stern of counsel], for the respondent.
The action is by a vendee, first, to amend a written contract of purchase and sale of real estate by inserting a law date; and second, to recover from the vendor a down-payment and incidental expenses, and, if necessary, to have a lien declared and a sale as in foreclosure to enforce such lien. The plaintiff has recovered in full.
The transaction involved so much in the way of mutual postponement and efforts made on both sides to clear the title of apparent incumbrances that — in the absence of a law day in the contract — defendants were entitled to a reasonable time for fulfillment. ( Trainor Co. v. Amsinck Co., Inc., 236 N.Y. 392; Murray Co. v. Lidgerwood Mfg. Co., 241 id. 455.) The fixing by the learned trial court of October 26, 1928, as the law day was unwarranted by the evidence. The difficulties in the way of passing a good title to plaintiff, as manifested by the record, are not so serious in fact or law that plaintiff at this time should have the relief awarded. ( Brokaw v. Duffy, 165 N.Y. 391; Harris v. Shorall, 230 id. 343; 231 id. 541; Norwegian Evangelical Free Church v. Milhauser, 252 id. 186.)
The judgment should be reversed, without costs of this appeal, and an interlocutory judgment of this court entered appointing a referee to take proof of title and to report to this court, with his opinion, such proof to be taken within thirty days after entry of the judgment of this court and service thereof and of notice of entry.
Certain findings of fact and conclusions of law disapproved and reversed and new findings made. Upon the coming in of the referee's report additional findings of fact and conclusions of law will be made, suitable as a basis for the final judgment to be entered.
All concur. Present — SEARS, P.J., CROUCH, TAYLOR, EDGCOMB and THOMPSON, JJ.
Judgment reversed on the law and facts, without costs of this appeal to either party, and an interlocutory judgment of this court entered appointing a referee to take proof of title, and to report to this court, with his opinion, such proof to be taken within thirty days after service of the judgment entered upon this decision with notice of entry. Certain findings of fact and conclusions of law disapproved and reversed and new findings made. Upon the coming in of the referee's report additional findings of fact and conclusions of law will be made, suitable as a basis for the final judgment to be entered.