Court of Appeals of New York.
ILEMAR CORP., Appellant,
v.
Henry KROCHMAL et al., Respondents.
March 29, 1978.
Purchaser brought action against vendor to recover down payments made by it
under a contract for purchase of realty. The Supreme Court, Trial Term, Suffolk
County, George F. X. McInerney, J., entered judgment for purchaser, and vendor
appealed. The Supreme Court, Appellate Division, Second Department, reversed,
and purchaser appealed. The Court of Appeals held that where claimed title
defects were curable, vendor was never advised by purchaser of alleged title
defects, and purchaser itself failed to tender performance, purchaser never
placed vendor in default, and it was thus not entitled to recover its down
payments made pursuant to contract.
Affirmed.
West Headnotes
[1] Vendor and Purchaser 147
400k147 Most Cited Cases
[1] Vendor and Purchaser 170
400k170 Most Cited Cases
In order to place vendor of realty under contract of sale in default for claimed
failure to provide clear title, purchaser normally must first tender performance
himself and demand good title; tender of performance by purchaser is excused
only if title defect is not curable, for in such a case it would serve no
purpose to require purchaser to go through the futile motions of tendering
performance.
[2] Vendor and Purchaser 334(5)
400k334(5) Most Cited Cases
Where claimed title defects were curable, vendor was never advised by purchaser
of defects, and purchaser itself failed to tender performance, purchaser never
placed vendor in default, and was not entitled to recover its down payments made
pursuant to contract.
*703 ***445 **917 Ira L. Hyams and Howard J. Herman, Jericho, for appellant.
Samuel Kirschenbaum and Brian Michael Seltzer, New York City, for respondents.
OPINION OF THE COURT
MEMORANDUM.
[1][2] The order appealed from should be affirmed, with costs. In order to
place the vendor of realty under a contract of sale in default for a claimed
failure to provide clear title, the purchaser normally must first tender
performance himself and demand good title (Cohen v. Kranz, 12 N.Y.2d 242, 238
N.Y.S.2d 928, 189 N.E.2d 473; Higgins v. Eagleton, 155 N.Y. 466, 50 N.E. 287).
Tender of performance by the purchaser is excused only if the title defect is
not curable, for in such a case it would serve no purpose to require the
purchaser to go through the futile motions of tendering performance. In this
case, the claimed defects were curable, and, in fact, were subsequently cured.
Moreover, not only did the purchaser itself fail to tender performance but,
strangely, the vendor was never advised by the purchaser of the defects which it
*704 allegedly found objectionable. Accordingly, the purchaser never placed the
vendor in default, and is thus notentitled to recover its down payments made
pursuant to the contract as extended.
**918 BREITEL, C. J., and JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and
COOKE, JJ., concur in memorandum.
Order affirmed.
405 N.Y.S.2d 444, 44 N.Y.2d 702, 376 N.E.2d 917
END OF DOCUMENT
Court of Appeals of New York.ILEMAR CORP., Appellant,v.Henry KROCHMAL et al., Respondents.
March 29, 1978.
Purchaser brought action against vendor to recover down payments made by it under a contract for purchase of realty. The Supreme Court, Trial Term, Suffolk County, George F. X. McInerney, J., entered judgment for purchaser, and vendor appealed. The Supreme Court, Appellate Division, Second Department, reversed, and purchaser appealed. The Court of Appeals held that where claimed title defects were curable, vendor was never advised by purchaser of alleged title defects, and purchaser itself failed to tender performance, purchaser never placed vendor in default, and it was thus not entitled to recover its down payments made pursuant to contract.
Affirmed.
West Headnotes
[1] Vendor and Purchaser 147400k147 Most Cited Cases
[1] Vendor and Purchaser 170400k170 Most Cited Cases
In order to place vendor of realty under contract of sale in default for claimed failure to provide clear title, purchaser normally must first tender performance himself and demand good title; tender of performance by purchaser is excused only if title defect is not curable, for in such a case it would serve no purpose to require purchaser to go through the futile motions of tendering performance.
[2] Vendor and Purchaser 334(5)400k334(5) Most Cited Cases
Where claimed title defects were curable, vendor was never advised by purchaser of defects, and purchaser itself failed to tender performance, purchaser never placed vendor in default, and was not entitled to recover its down payments made pursuant to contract. *703 ***445 **917 Ira L. Hyams and Howard J. Herman, Jericho, for appellant.
Samuel Kirschenbaum and Brian Michael Seltzer, New York City, for respondents.
OPINION OF THE COURT MEMORANDUM.
[1][2] The order appealed from should be affirmed, with costs. In order to place the vendor of realty under a contract of sale in default for a claimed failure to provide clear title, the purchaser normally must first tender performance himself and demand good title (Cohen v. Kranz, 12 N.Y.2d 242, 238 N.Y.S.2d 928, 189 N.E.2d 473; Higgins v. Eagleton, 155 N.Y. 466, 50 N.E. 287). Tender of performance by the purchaser is excused only if the title defect is not curable, for in such a case it would serve no purpose to require the purchaser to go through the futile motions of tendering performance. In this case, the claimed defects were curable, and, in fact, were subsequently cured. Moreover, not only did the purchaser itself fail to tender performance but, strangely, the vendor was never advised by the purchaser of the defects which it *704 allegedly found objectionable. Accordingly, the purchaser never placed the vendor in default, and is thus notentitled to recover its down payments made pursuant to the contract as extended.
**918 BREITEL, C. J., and JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE, JJ., concur in memorandum.
Order affirmed.
405 N.Y.S.2d 444, 44 N.Y.2d 702, 376 N.E.2d 917
END OF DOCUMENT