Reports of Cases Heard and Determined in the Appellate Division of the Supreme Court of the State of New York Volume 84 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1903 Excerpt: ... trial, even though defective at the time fixed for performance of the contract where the vendor has, upon discovering defects, exercised diligence in remedying the same, if there has been no change in the circumstances or position of the parties by which performance will become inequitable, or will be to the substantial prejudice of either party, or where nothing has occurred to create an estoppel. (Schmidt v. Reed, 132 N. Y. 108; Hafey v. Lynch, 143 id. 241; Jenkins v. Fa/zey, 73 id. 355'; Myers v. De Jllier, 52 id. 647; Hubbell v. Van Sc/we'm'ng, 49 id. 326.) The courts are not as liberal in relieving a purchaser under private contract on account of technical defects as at a judicial sale. (Haberman v. Baker, 128 N. Y. 253.) There is no evidence of a change of circumstances of the parties rendering it inequitable to decree specific performance. The parties did not stand upon their strict legal rights or insist that time was of the essence of the contract. Their negotiations at the time fixed for performance and subsequently thereto show that both were still willing and anxious to perform and that neither rescinded for the breach. This is further borne out by the respondent's answer, to which reference has been made. The action was commenced on the 11th day of July, 1902, or within ten days after the day fixed for performance. This was within a reasonable time; and we think the plaintifi has in no manner slept upon his rights. He should, however, have submitted a copy of the order correcting the foreclosure proceedings and of the papers upon which it was granted to the attorney for the respondent and afiorded an opportunity to him to examine the same before commencing the action. This, however, does not afiect the jurisdiction of the court; but for ...