APPEAL from an interlocutory judgment of the Supreme Court in favor of plaintiff, entered January 20, 1954, in New York County, upon a decision of the court on a trial at Special Term (DINEEN, J.), which directed the defendants to convey to plaintiff their interest in property 343-347 Broadway and 90-94 Leonard Street, New York City, upon payment of $30,523.71,
less the costs awarded to plaintiff, and less the net rents and profits since May 1, 1951.
Samuel Gottlieb of counsel (Harry Giesow with him on the brief; Spiro, Felstiner & Prager, attorneys), for appellants.
Abraham Wilson of counsel (John C. Walsh and Harold N. Schwinger with him on the brief; Kadel, Wilson & Potts, attorneys), for respondent.
Plaintiff and defendant Helen Mazur, together with other persons, owned certain real property as tenants in common. Plaintiff had a 30% interest and Mrs. Mazur's interest was 212/3%. In August, 1947, plaintiff and Mrs. Mazur entered into an agreement wherein they mutually agreed that neither of them would 'sell, transfer or assign' his or her respective interest in the property without first offering it to the other at cost. The cost price was to be ascertained by named accountants and this determination was to be final and binding. The agreement provided for ten days' notice by registered mail within which period the recipient could exercise the option to purchase the property.
Several years after the execution of this agreement Mrs. Mazur, without giving written notice to plaintiff as required by the afore-mentioned option agreement, conveyed her entire interest to two of her attorneys, as trustees. Under this indenture agreement Mrs. Mazur's interest was set up in trust for her infant son, who was to receive the income for a stated period and the entire principal when he reached age thirty. The trust was irrevocable, and Mrs. Mazur retained no reversionary or remainder interest.
A year later, when plaintiff allegedly first learned of the conveyance, he demanded that Mrs. Mazur's interest in the property be conveyed to him pursuant to the terms of the option agreement. Upon her refusal to do so this action for specific performance was instituted against Mrs. Mazur and the trustees, individually and in their capacity as trustees. A financial statement prepared by the accountants designated in the option agreement fixed the value of Mrs. Mazur's interest at $30,523.71, which plaintiff is ready, willing and able to pay. After trial the Trial Justice directed that the defendant trustees convey the 212/3% interest in the property to plaintiff upon his paying them the afore-mentioned cost price.
The Trial Justice properly found that the voluntary conveyance to the trustees was a breach of Mrs. Mazur's agreement
not to 'sell, transfer or assign' her interest 'except to [plaintiff]'. Defendants argue that the restriction applied only to a sale, and that the deed to the trustees was in the nature of a gift. But the words 'transfer' and 'assign' are not synonymous with 'sell'. Through long usage and judicial construction they have acquired meanings with a broader connotation (Black's Law Dictionary [3d ed.], pp. 154, 155; Webster's New International Dictionary; Phelps-Stokes Estates v. Nixon, 222 N.Y. 93, 100; O'Mara v. Dentinger, 271 A.D. 22, 28; Kavanaugh v. Cohoes Power & Light Corp., 114 Misc. 590, 608). The three words above quoted are linked in combination throughout the option agreement and must be given their comprehensive, aggregate significance in relation to the passing of Mrs. Mazur's title in the property. The language of the contract is unambiguous and on its face prohibits the conveyance to the trustees; and it is not the court's function to substitute a new agreement for the parties.
Defendants have interposed defenses to the effect that plaintiff consented to the conveyance to the trustees and thereby waived any objection thereto. These defenses are based on a conversation which a lawyer had with plaintiff.
This lawyer represented all the co-owners in the acquisition and operation of the real property. Acting on behalf of both principals herein, he drew the option agreement. Later, and with all good intentions, he drafted the deed to the trustees and the trust indenture, in which he and a law partner were named as cotrustees. This lawyer testified that he had the following conversation with plaintiff a few months before the execution of the deed and trust indenture--a conversation which must be considered against the background of social and professional intimacy in which the lawyer saw plaintiff and the Mazurs almost daily at that time: 'Q. Tell us what you told Mr. Gordon [[plaintiff] and what he told you? A. I told Mr. Gordon that Mr. Mazur has talked to me shortly before that about the advisability of Mrs. Mazur transferring her interest in the property under a trust to be established, and that the beneficiary of the trust was to be the son of Mr. and Mrs. Mazur, and that I told Mr. Mazur that for his purposes--and Mr. Mazur has been a ...