(189 N.Y.S.) KAPPER, J. Action for specific performance of a contract for the sale of real property between plaintiff, purchaser, and the defendant, seller. The contract is dated February 17, 1920. It provides for the closing of title "on or before June 1, 1920." A subsequent clause provides that the "purchaser shall give the seller at least five days' notice of the time when he will be ready to make settlement." Possession was to be delivered "at the time of settlement, subject to the existing lease." The lease in question contained a clause that, if the building should be rendered untenantable by fire, the rent should cease until the building should be put in complete repair, and in case of total destruction the rent should be paid to that time and thereupon the lease should terminate. The seller retained possession of the premises. On or about April 10th the building on the premises was substantially damaged by fire. On May 13th the defendant's attorney wrote the plaintiff's attorney that it was not the intention of the defendant to commence rebuilding until the purchaser "has finally indicated his decision to accept the property or rescind the contract of sale." This was followed by a letter, dated May 28th, in which the defendant refused to extend the time for settlement, and stated that, inasmuch as the time within which the plaintiff was to give notice of his readiness to settle "has gone by," the defendant considered the agreement broken "by the purchaser's failure to indicate his willingness to make settlement within the time specified." The plaintiff thereupon, and on June 7th, brought this action. [1] The defendant's repudiation of the contract, as evidenced by the letter of May 28th, written four days before June 1st, indicates that the defendant construed the contract as requiring the plaintiff to give five days' notice, in any event, of his intention and willingness to close. In this view I do not concur. The contract provided for settlement "on or before June 1, 1920." No notice was required of an intention to close on that day. June 1st was the law day of the contract. Five days' notice was required only in case the purchaser availed himself of the implied privilege of closing before June 1st. Any other construction would force the conclusion that the contract was unilateral for the purchaser might never give the notice. Therefore the defendant's repudiation of the contract on May 28th was without legal justification, and the plaintiff promptly avowed his refusal to acquiesce by bringing this action. [2] The parties differ radically as to whether the burden of a loss by fire, occurring between the date of execution and the day of performance of an executory contract for the purchase of real property, should be borne by the seller or by the purchaser. The question has led to much diversity of judicial opinion. It has been said to be the general rule that the loss falls upon the purchaser. Many cases are cited in the note found in 27 L. R. A. (N. S.) 233, also in Ruling Case Law (volume 27, § 293 et seq.), under the title "Vendor and Purchaser." Such is the contention of the defendant, who relies upon the case of Sewell v. Underhill, 197 N. Y. 168, 90 N. E. 430, 27 L. R. A. (N. S.) 233, 134 Am. St. Rep. 863, 18 Ann. Cas. 795. An examination of that case discloses that the vendee was in possession, had paid the 189 N.Y.S.-2 required cash consideration; had begun to pay the interest on his bond and mortgage, and had made repairs and improvements, and both the bond and mortgage and the deed had been executed. So, in the great majority of the cases where the doctrine has been asserted, it will be found that the vendee was in possession or had the right of possession under the contract. In Smith v. Phoenix Insurance Co., 91 Cal. 323, 27 Pac. 738, 13 L. R. A. 475, 25 Am. St. Rep. 191, the court say: "For the purpose of this decision, it is sufficient to say that no case has been cited, and we have discovered none, in which the vendee has been held bound to pay the purchase price where a valuable part of the property has been destroyed before the day fixed for payment and conveyance, unless he has taken possession under the contract of sale, or has the right to such possession under the contract before the occurrence of the loss." My own research bears out this view, and counsel cite me no case showing otherwise. See, also, Wicks v. Bowman, 5 Daly, 225; Smith v. McCluskey, 45 Barb. 610. An executory contract usually creates dependent covenants. The vendor must convey, and the vendee must pay the consideration. Each act is a condition precedent to the other. Neither party can require the other to perform, without himself offering to perform; and unless the contract so provides, the vendee has no right of possession until he has paid the consideration and so performed the condition precedent. The execution of the contract of sale of itself does not give the vendee even a license to enter. 27 R. C. L. § 285; Teller v. Schulz, 123 App. Div. 883, 108 N. Y. Supp. 325; Fagan v. Scott, 14 Hun, 162. But a vendee in possession has physical control of the property and is vested with all the outward indicia of ownership; the full beneficial enjoyment of the property is his. With reason, therefore, may the doctrine be asserted that a vendee should bear the loss of that which he possesses, controls, and enjoys. But the doctrine does not appeal to me with equal force where the vendor retains possession and control. However, it does not seem to me to be necessary to decide the question in the present case. In her brief the defendant states: "Upon the happening of the fire, the plaintiff had the right to demand a conveyance of the property, paying the full purchase price, and perhaps claiming the benefit of any insurance which there was upon the property." I assent to the proposition. This is precisely what plaintiff did. The defendant had repudiated the contract. Plaintiff immediately sued for its enforcement. He could not foresee that defendant would restore the property, and he framed his complaint accordingly, asking for specific performance, with abatement from the purchase price on account of the damage caused by the fire. With full knowledge of the pendency of the action, and before the trial thereof, defendant restored. the property at an expense concededly less than the amount of the insurance theretofore collected by her. "Insurance on buildings burned after the making of a contract of sale belongs to the vendor, where the loss falls on him because the contract had not been executed by transfer of possession, and the validity of the title was still under investigation. So, where insured property is destroyed after the (189 N.Y.S.) making of the contract of sale, but before the payment of the purchase money and the execution of the conveyance, the proceeds of the insurance belong to the vendor as between him and the company; but he acts as trustee for the vendee, who, upon payment of the purchase price, is entitled to the insurance money in equity." 5 Joyce, Ins. § 3488c. [3] Plaintiff is willing to take the premises as they now are. Defendant may not complain, for she has suffered no injury. In fact, in so far as the insurance was not exhausted in restoring the property, the defendant has benefited financially. Neither will she be heard to complain of the loss of a better bargain since made. If this be so, defendant made the better bargain with knowledge of the pendency of a suit based upon her wrongful repudiation of a valid pre-existing contract, and her action in so doing precludes her in this respect from equitable consideration. Both parties contracted with knowledge of the provision in the outstanding lease that rent should cease upon the destruction of the building by fire; they provided that taxes, water rents, interest, house rents, and premiums on fire insurance were to be adjusted as of April second. This clearly has reference to rents actually to be received. No provision was made covering the contingency of the loss of rents caused by fire. Under the circumstances presented, I think the parties in this respect should be left as they are. I think plaintiff should have judgment, but without costs. Judgment for plaintiff, without costs. (115 Misc. Rep. 70) MAEURER v. MORSE DRY DOCK & REPAIR CO. * Pleading 318 (3)-Employee compensated for injuries in maritime work entitled to bill of particulars of contributory negligence pleaded in action under Employers' Liability Act for same injuries. Where an employee was engaged in work maritime in its nature, and sustained personal injuries for which he received compensation under the Workmen's Compensation Law, and subsequently brought an action in the state court for the same injuries under the common law and the Employers' Liability Act (Labor Law, §§ 200-204), held, that a motion for a bill of particulars as to contributory negligence, pleaded as a defense, should be granted. Action by George Maeurer against the Morse Dry Dock & Repair Company. On motion for bill of particulars. Motion granted. Smith & Reiher, of Brooklyn (George F. Palmer, of Brooklyn, of counsel), for plaintiff. Campbell, Flaherty, Turner & Strouse, of New York City (Charles J. McDermott, of New York City, of counsel), for defendant. VAN SICLEN, J. Motion by plaintiff to compel the defendant to give bill of particulars of defense, alleging contributory negligence of the plaintiff, as set forth in defendant's answer. There seems to be no dispute, and the fact is, that the plaintiff, when injured, was engaged in work maritime in its nature, that at the time of the injury plaintiff was in the employ of the defendant, and that heretofore the plaintiff made claim for and received compensation under the Workmen's Compensation Law of this state (Consol. Laws, c. 67). After the decision of Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 40 Sup. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145, the plaintiff brought action to recover for the injury received, and claims that he is entitled to such recovery both by an action at common law and under the Employers' Liability Act, and that he is entitled to his bill of particulars by reason of the last mentioned act. The case of Knickerbocker Ice Co. v. Stewart, supra, fully and finally determines that the said Workmen's Compensation Act has no application, so that the plaintiff is now relegated to whatever right and remedy he may have had, exclusive of the Workmen's Compensation Act, at the time of his injury. The defendant holds that, whatever right or remedy the plaintiff may show himself entitled to, he is obliged upon the trial to prove his freedom from contributory negligence, and that therefore the plaintiff can, under no rule of law or statute, compel the defendant to furnish particulars of the contributory negligence alleged as a defense; further, that by bringing action in a state court plaintiff has saved to himself only a common-law remedy, and if the rule of maritime law is applied-and the courts have held that maritime law cannot be administered in the state Supreme Court (see Johnson v. Standard Transportation Co., 188 App. Div. 934, 176 N. Y. Supp. 905; Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 38 Sup. Ct. 501, 62 L. Ed. 1171)— no bill of particulars, as sought can be obtained. Having been barred under the Workmen's Compensation Act, defendant asserts plaintiff cannot, under another statute, to wit, the Employers' Liability Act (Labor Law [Consol. Laws, c. 31], §§ 200-204) take advantage of the privileges furnished by that act. The federal courts have recently decided what is an invasion of the exclusive jurisdiction of the federal courts over all civil and maritime causes and the saving clause to suitors in all cases and right of a common-law remedy where common law is competent to give it. Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900; Clyde Steamship Co. v. Walker, 244 U. S. 255, 37 Sup. Ct. 545, 61 L. Ed. 1116; Knickerbocker Ice Co. v. Stewart, supra. This does not mean, necessarily, a commonlaw action, but that the remedy might be by any means employed to enforce the rights or redress the injury. Knapp, Stout & Co. v. McCaffrey, 177 U. S. 638, 644, 20 Sup. Ct. 824, 44 L. Ed. 921. The present action being a tort case, jurisdiction depends solely upon the place where the tort was committed, and under the saving clause of the federal Constitution, plaintiff contends that the remedy for the wrong or injury done him may be sought by any means employed to enforce his rights or redress the injury. Further, that the Employers' Liability Act never having been repealed, he is fully within his rights in seeking to obtain, in full, the benefits afforded thereby. (189 N.Y.S.) Matter of Doey v. Howland Co., 224 N. Y. 30, 120 N. E. 53; Matter of Anderson v. Johnson Lighterage Co., 224 N. Y. 539, 120 N. E. 55. Plaintiff further contends that the relief sought in no way contravenes the saving clause of the federal Constitution of the right of common-law remedy, because the Employers' Liability Act, so far as the matter at issue is concerned, is simply a question of procedure and does not create substantive rights or substantive law. Sackheim v. Pigueron, 215 N. Y. 62, 109 N. E. 109. It is of immediate and great importance that the questions herein involved should be definitely settled. Many actions involving maritime law have been brought in the state courts, and a clear working rule is desired. Already cases have been decided according to the common law, maritime law, relating to wage, maintenance, and cure, and also the application of the rule of comparative negligence, and have also been determined by application of the Employers' Liability Act. The circumstances are such that the motion should be granted. Motion granted. (115 Misc. Rep. 61) SCHWARTZ & JAFFEE, Inc., v. HILLMAN et al. (Supreme Court, Special Term, Kings County. March, 1921.) Injunction 147-Under proofs of plaintiff and admissions of defendants, picketing and interfering with employer's business restrained pendente lite. In a clothing manufacturer's suit to enjoin the officers and members of the Amalgamated Clothing Workers of America from doing acts injurious to plaintiff's business, and for an adjudication that said association is a conspiracy in restraint of trade, where it appears from the papers on a motion for an injunction pendente lite that plaintiff had returned to the open shop policy, and there was proof of plaintiff's claim that defendants were guilty of calling the strike, picketing the plaintiff's premises, and interfering with employees, an injunction will be granted. Suit by Schwartz & Jaffee, Incorporated, against Sidney Hillman, individually and as General President of the Amalgamated Clothing Workers of America, and others, for an injunction. Writ granted. Meier Steinbrink, of Brooklyn, for plaintiff. Lowenthal & Szold, of New York City (Robert Szold, of New York City, of counsel), for defendants Hillman and others. VAN SICLEN, J. The plaintiff corporation, a manufacturer of clothing, makes application to this court for an order enjoining the defendants during the pendency of this action from doing acts injurious to the plaintiff's business, which, it is alleged, consist of unlawful picketing, threats, molestation, intimidation, interference with contracts of employment, and instigating, waging, and continuing a strike among plaintiff's employees. The defendants oppose the motion in every particular. The relief sought by the plaintiff is to perpetually For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |