Appeal from Kings County Court.
Action by Willie Alpern against William J. Farrell. Judgment of dismissal, and plaintiff appeals. Modified and affirmed.
[117 N.Y.S. 707] Harry Zirn, for appellant.
C. W. Wilson, Jr., for respondent.
Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, GAYNOR, and BURR, JJ.
Plaintiff's assignor and the defendant made a contract, by which the latter agreed to sell, and the former to purchase, property on the southwest corner of Marcy avenue and Kosciusko street, in the borough of Brooklyn. This action is brought to recover the earnest money paid thereon and the expenses of examining the title. The contract was to be closed on August 15, 1906. On July 25, 1900, the city of New York, through its building department, had taken proceedings to condemn the buildings then on the property as unsafe, and had filed notices of such proceedings in the county clerk's office. Shortly thereafter, and before the 8th day of August, 1900, the buildings were made safe, and the records of the building department show that it had given its approval of the alterations made and withdrawn its complaint. At the time when the contract was to be closed, the defendant had in his possession a letter from the chief inspector and acting superintendent of the building department, stating that fact, which letter was exhibited to the vendee. Notwithstanding this, the vendee claimed that the title was defective because the notices of lis pendens were uncanceled of record. Thereafter, and on the 18th of September, 1906, the defendant did cause them to be canceled upon the consent of the corporation counsel. All of these facts were undisputed. Upon the closing day, according to the testimony of the defendant, his own counsel, and counsel for the vendee, the defendant offered to procure the cancellation thereof, but plaintiff refused to grant an adjournment of two or three days for that purpose, or any adjournment, unless one for a month was granted to him. The testimony [117 N.Y.S. 708] of the vendee upon this point is so vague and indefinite as to raise no issue. Subsequently the vendee assigned his claim to the plaintiff, and on the 31st day of January, 1907, this action for damages for breach of the contract was commenced. The title of the defendant was perfectly good. A notice that an action or proceeding has been commenced affecting the title to property does not necessarily make the title defective. If the cause of action has been settled before judgment and it so appears from public records, or by satisfactory evidence, or if the action or proceeding is abated, or if judgment has been entered in the action adverse to plaintiff's claim, the existence of an uncanceled lis pendens is of no consequence. Hayes v. Nourse, 114 N.Y. 595, 22 N.E. 40,11 Am.St.Rep. 700; Baecht v. Hevesy, 115 A.D. 509, 101 N.Y.Supp. 413; Weissberger v. Wallach, 124 A.D. 382, 108 N.Y.Supp. 887; Grace v. Bowden, 10 A.D. 541, 42 N.Y.Supp. 60.In Hayes v. Nourse the court say, citing with approval the opinion of the Master of the Rolls in Bull v. Hutchins, 32 Beav. 615:
" All that the registration of a lis pendens does is to require persons to look into the claims of the plaintiff who registers it."
In this case an examination of the records of the superintendent of the building department, which are public records (Laws 1901, p. 185, c. 466, § 413), would have disclosed that there was no existing cause of action, but that the same had been completely settled. There is no force in the suggestion that the city might have a lien for the costs and expenses of the preliminary search and survey. These can only be recovered if final judgment is rendered declaring the building unsafe and directing a precept to issue for its removal, and such precept has been returned with an indorsement of the action thereunder. Building Code, § 115. As has been pointed out, no such judgment can ever be rendered, for no cause of action now exists. Time was not of the essence of the contract, as is shown by the vendee's request for a long adjournment, and, under the circumstances, the vendee was not justified in terminating the contract without giving the vendor an opportunity to procure the cancellation of the lis pendens, if that had been necessary. Weissberger v. Wallach, supra.In that case a lis pendens had been filed in an action to foreclose a mortgage upon the property. Objection was made by the vendee to completing the contract for the sale of the property upon the ground that this was open of record. The vendor thereupon produced an agreement extending the time for the payment of the mortgage and asked for a short adjournment to procure the cancellation of the lis pendens, which was refused. In an action by the vendee the court said that the lis pendens " was not an incumbrance, and the plaintiffs were not entitled to reject the title upon that ground. It is perfectly plain that the title was good." In Grace v. Bowden, supra, the Appellate Division of this department, speaking through Mr. Justice Bartlett, said:
" The mere existence of the notice of lis pendens on record *** was not enough to make the title doubtful. The objecting party was bound to go further, and show that doubt was created by the character of the claim which was made in the suit to which the notice of lis pendens referred."
[117 N.Y.S. 709] It is unnecessary, therefore, to decide whether, if the title had been bad, it was necessary for the vendee to tender the purchase money to the vendor and demand a conveyance in accordance with the terms of the contract before bringing his action to recover the earnest money and expenses. If such question were in the case, I should say that under the circumstances here disclosed it was necessary. Before a vendee can recover damages of his vendor for breach of a contract to convey, he must prove that he was ready and able to perform. The only exceptions to that rule are when the incumbrance is of such a character that the vendor is unable to remove it, or when the vendor has declared in advance that he will not complete. Ziehen v. Smith, 148 N.Y. 558, 42 N.E. 1080; Higgins v. Eagleton, 155 N.Y. 466, 50 N.E. 287; Vandegrift v. Cowles Engineering Co., 161 N.Y. 435, 55 N.E. 941,48 L.R.A. 685; Dwork v. Weinberg, 120 A.D. 507, 105 N.Y.Supp. 504.In the case last cited, this court, Mr. Justice Gaynor writing, says:
" The plaintiff [the vendee] made default by not being present and tendering performance. If the defendant had himself done something which made performance by him impossible, or given notice in advance that he would not convey, a tender by the plaintiff would not have been necessary. The law would excuse it."
Tender imports not only readiness and ability to perform, but actual production of the thing to be delivered. Eddy v. Davis, 116 N.Y. 249, 251, 32 N.E. 362.The only tender of performance which a vendee can make is tender of the purchase money. This seems to have been considered the rule. In Hartley v. James, 50 N.Y. 38, the court say, on page 43:
" Under some circumstances the court will not hold a contract void by reason of the inability of the seller to make a perfect title, but will put the purchaser to a tender of payment and a demand of the deed, to the end that the seller may make his title good. If a seller of lands by an executory contract of sale before the day of performance gives notice of his intention not to perform, or absolutely refuses to perform, or on being applied to is unable to perform, or offers a defective title, a formal tender and offer of payment and demand of a deed by the purchaser is not necessary to entitle him to treat the contract as rescinded, and recover back what he has paid thereon."
Tender is " an offer to perform an act which the party offering is bound to perform." 28 Am. & Eng. Ency. of Law, 4. It is an offer to perform an act or to pay money, with a present ability to do so. Cockrill v. Kirkpatrick, 9 Mo. 697.The tender of the purchase money is not absolute and unconditional, so that the purchaser can under no circumstances withdraw his hand any more than a verbal or a written offer to perform would be. Both are conditional upon the vendor carrying out the terms of the contract upon his part. A tender of money is not invalid because coupled with a demand for the performant of a reciprocal duty enjoined by law upon the person to whom the tender of money is made. Halpin v. Phoenix Ins. Co., 118 N.Y. 165, 23 N.E. 482; Harding v. Giddings, 73 F. 335,19 C. C. A. 500; Henry v. Raiman, 25 Pa. 354,64 Am. Dec. 703.The production of the purchase money and its offer or tender is conclusive evidence of the vendee's ability and willingness. A mere oral or written proposal [117 N.Y.S. 710] to perform might not be. The soundness of such a rule is manifested in this case, for there was evidence on the part of the ...