Brokaw v. . Duffy
New York Court of Appeals
Appeal from an order of the Appellate Division of the Supreme Court in the -first judicial department, entered February 2, 1899, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term without a jury, and granting a new trial.
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Appeal from an order of the Appellate Division of the Supreme Court in the -first judicial department, entered February 2, 1899, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term without a jury, and granting a new trial. This action was brought by a vendee of real estate, under an executory contract, to recover the amount paid thereon in advance and for examination of title, upon the ground that the vendor could not fulfill her contract to convey because her title was not marketable. By a contract dated November 27, 1891, the…
1Opinion of the CourtVann, J.
The plaintiff was entitled to a marketable title free from doubtful questions of fact or law. Unless the defendant could convey such a title, it was impossible for her to perform her contract and the plaintiff was entitled to recover the money paid thereon and the expenses incurred by him in examining the title. • “ If the vendor of real estate, under an executory contract, is unable to perform on his part at the time provided by the contract, a formal tender or demand on the part of the vendee is not necessary in order to enable him to maintain an action to recover the money paid on the…
2Cases cited11 opinions
- Fleming v. . BurnhamNew York Court of Appeals · 1885
- Vought v. . WilliamsNew York Court of Appeals · 1890
- Moore v. . WilliamsNew York Court of Appeals · 1889
- Heller v. . CohenNew York Court of Appeals · 1897
- Ziehen v. . SmithNew York Court of Appeals · 1896
6 more not listed; retrieve them via the Exa API.
3Cited by31 opinions
- Grace v. NappaNew York Court of Appeals · 1979
- Regan v. LanzeNew York Court of Appeals · 1976
- Howe v. CoatesSupreme Court of Minnesota · 1906
- Lunde v. MinchSupreme Court of Connecticut · 1927
- Zunker v. KuehnWisconsin Supreme Court · 1902
26 more not listed; retrieve them via the Exa API.