SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
October 14, 1968
HERMAN SCHUMAN, APPELLANT,
ALFRED J. CONFORTI, RESPONDENT
In an action to recover a sum delivered to defendant in escrow, as security pending the preparation, execution and delivery of a written contract for the purchase and sale of real property, plaintiff appeals from a judgment of the Supreme Court, Richmond County, dated February 6, 1968, which dismissed the complaint after a non-jury trial. Judgment reversed, on the law and the facts, with costs, and judgment granted in favor of plaintiff in the sum of $10,000 with interest from January 13, 1965. In our view, it is apparent from this record, contrary to the finding of the trial court, that time for the fulfillment of the condition of the escrow by the vendee was not of the essence of the escrow agreement. From the documentary evidence and defendant's own testimonial admissions, it is evident that, acting in his dual capacity as an officer of the corporate-vendor, he was willing to enter into a written contract with plaintiff vendee many months after the alleged critical date of January 6, 1965.
Brennan, Acting P. J., Rabin, Hopkins and Benjamin, JJ., concur; Martuscello, J., not voting.
In our opinion, defendant was derelict in his fiduciary duty to defer disbursement of the escrow fund until the eventual fulfillment of the escrow agreement. We deem defendant's premature disbursement of the escrow fund incompatible with his obligation as an impartial trustee of the escrow fund (20 N. Y. Jur., Escrow, § 1, et seq.).
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