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In the last line of syllabus to case of Evans v. 1 he People, page 86, after the word "acts" insert "done."
In the syllabus to case of Malloney v. Horan, page 112, the case of Meyer v. Mohr, "questioned," is stated as in 18 Robt. It should be 1
In case of Finch v. Parker, erase the word "reversed" in last page 11, and insert "affirmed."
JAMES H. FINCH, Appellant, v. WILLARD PARKER, Respondent.
The General Term has power to pass upon the weight of conflicting evidence; and, in an action, tried by the court or a referee, it is its duty to examine the questions of fact presented; and, if the result is a conviction that the findings are not in accordance with truth, to reverse the judgment for error of fact and direct a new trial, no such power is given to to this court.
Where, in a contract for the conveyance of lands, the payment of the purchase-price, or a portion thereof, is to accompany or precede the delivery of the deed, but no time is fixed for such payment and delivery, the payment is to be made in a reasonable time, or upon request; and a delay of three years and upward after such request, without any excuse therefor, is such laches as will preclude a judgment for specific performance. Where, by laches, the remedy at law is barred, and the rights to a specific performance forfeited, there can be no recovery of what has been paid upon the contract.
(Argued February 21, 1872; decided March 26, 1872.)
APPEAL from judgment of the General Term of the Supreme Court, in the first judicial district, affirming a judgment in favor of defendant, entered upon a decision of the court at Special Term, and affirming an order denying a motion for further findings of fact.
The action was brought for the specific performance of a
49 1 120 643
Statement of case.
contract alleged to have been executed March 26th, 1859, between William W. Young and defendant, and assigned by Young to plaintiff, March 29th, 1872. The court found, substantially, the following facts.
That the defendant and Young purchased, in the year 1855, on joint account, the property and premises described in the complaint. That they continued thus to hold the said property on joint account until the month of March, 1859, when the supposed contract, set forth in the complaint herein, was entered into between defendant and Young for the purpose of settling their joint interest in said property. The contract sued on is not a correct copy of the contract entered into between said Young and defendant. A settlement took place, between the said Young and defendant, of all the accounts and dealings between them, on the 21st of June, 1859; and on that settlement there was admitted to be due to the defendant from said Young $11,413.09. And said Young gave his note to the defendant for $413.09, and the amount of $11,000 was to be paid by four mortgages on the property. That said Young was indebted to the defendant for various other sums arising out of their first transactions, consisting chiefly of promissory notes, amounting to upwards of $10,000. That a contract was made between defendant and Young, under and in pursuance of which the defendant and his wife executed a deed of the first described property and premises to Young. And it was agreed and understood between defendant and Young that said deed and said four bonds and mortgages should be placed and remain in escrow until Young should pay said note of $413.09, and the several notes aforesaid; and when so paid, said deed should be delivered to Young, and said bonds and mortgages delivered to defendant. That the said deed and bonds and mortgages were placed in escrow for the purposes aforesaid. That said Young failed to perform his engagements by paying the said note of $413.09 and the said outstanding obligations to the defendant. That Young duly assigned said contract to plaintiff. That Young and the defendant, after
Statement of case.
various negotiations, agreed on a sale of the property at auction, for the purpose of closing their joint interests, at which it was agreed that both parties might bid; that the sale was mainly got up by said Young, and that both were bidders at such sale. That in pursuance of said arrangement a public sale at auction took place on the 22d day of November, 1859. That the defendant bought the portion of the property now held by him at such sale. That no notice of the assignment of the supposed contract was ever given to the defendant prior to the commencement of this action in August, 1864; and, as conclusions of law therefrom, that plaintiff was not entitled to specific performance nor for damages, inasmuch as he never gave notice of the assignment, and never tendered performance until after the lapse of five years, and after the joint interest of the original parties had terminated by a sale, agreed upon by them for that purpose.
A. Prentice for the appellant. Plaintiff is entitled to all the rights of his assignor under the contract. (2 Story's Eq., 8783; Seaman v. Van Rensselaer, 10 Barb., 81; Moore v. Burrows, 34 Barb., 172, 183; Leggett v. Edwards, 1 Hop. Ch., 530; Code, § 111.) Plaintiff lost none of these rights by reason of delay. (Code, § 97; Bruce v. Tilson, 25 N. Y., 194, 196; Leaird v. Smith, 44 N. Y., 618; Bucklin v. Bucklin, 1 Keys, bottom of pages 148, 149, 150; Peabody v. Roberts, 47 Barb., middle of page 103; Miller v. The Mayor, etc., 53 Barb., 653; Bartlett v. Judd, 21 N. Y., 205, middle of page; Wood v. Same, 26 Barb., 361; Benson v. Tilton, 24 How., 494; Fogal v. Pirro, 17 Abb., 113; Ward v. Smith, 3 Sandf. Ch., 592; Boerum v. Schenck, 41 N. Y., 183; Hawley v. Creamer, 4 Cowen, 743.) Defendant held the property in trust. (2 Story's Eq. Jur., §§ 789, 790; id., 1212; 1 Fonbl. Eq., B. 1, ch. 6, § 9, and notes (s) (t); Moore v. Burrows, 34 Barb., 173, 174; Seaman v. Van Rensselaer, 10 Barb., 86, and cases cited; Swartwout v. Burr, 1 Barb., 495, 499, and cases cited; Day v. Roth, 18 N. Y.,