APPEAL by the defendant, the Laurelton Land Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 14th day of July, 1911, upon the decision of the court rendered after a trial at the Queens County Special Term.
Clarence E. Thornall, for the appellant.
Adolph Feldblum, for the respondent.
The defendant appeals from a judgment of the Special Term, in Queens county, which adjudged that the plaintiff had a vendee's lien on certain real estate situated in said county and decreed the foreclosure thereof. The defendant is a land
development company which owned a tract of land in Queens county, comprising about 4,000 lots. It started out to market these lots, either for cash or by sale on the installment plan. As a part of its method of marketing these lots, it advertised certain advantages which it was to give to the property in question, in the way of grading and building streets, cement sidewalks, trees, shrubbery, gas, water, and, as the crowning cap of all, the building of a large clubhouse with a garage for the use of the people who might buy and settle at the place in question.
The plaintiff, attracted by these advertisements, entered into negotiations with the agents of the defendant for the purchase of several lots on the installment plan. A contract in writing was made between them, covering some nine lots, the purchase price being $5,670, on which ten per cent was paid down and the balance was to be paid in monthly payments at the rate of $113 each month. Before the execution of the contract there was indorsed upon the back of it a memorandum relating to the grading and the paving of the streets and the making of sidewalks, etc. This memorandum contained a clause as follows: 'It is further agreed that the railroad station will be completed and twenty-five houses and the clubhouse in course of construction or completed during the next twelve months.'
The contract was signed on October 1, 1906. The railroad station and clubhouse referred to in this memorandum were the things referred to in the public advertisements of the defendant. The plaintiff began making his payments from month to month until he had paid in altogether the sum of $5,539. The defendant, however, did not complete its agreement as to the making and paving of the streets, and the putting in of gas and water, nor in the building of the railroad station, nor in the building of the number of houses specified, nor in the starting and completion of the clubhouse within the time specified in the memorandum on the back of the contract.
The plaintiff made complaints from time to time as to this failure on the part of the defendant, but apparently without any result. In February, 1911, he brought this action to establish a breach of agreement on the part of the defendant, and
to have adjudged upon the land in question a lien for the moneys which he had already paid on his part in performance of the contract.
Before the case came to trial a number of new houses were built and a railroad station was erected, but at the time of the trial not all of the specified number of houses were completed, and the clubhouse had not been begun at all, and there was an issue as to the number of streets which had been improved, which was found in favor of the plaintiff.
It seems to us that the plain equities of this case are in favor of the plaintiff. In view of the large number of these land-developing companies and the enticing promises which they hold out to intending purchasers, there can be no question that these promises are an integral part of the transaction of sale between the parties where, as in this case, a special memorandum referring generally to these matters was indorsed upon the contract before it was executed and delivered, thus making these matters a part of the transaction of sale. Here the plaintiff was paying in his money for five years, without any substantial performance on the part of the defendant of the promises which induced the making of the contract between it and him. If ...