Schein v. Erasmus Realty Co.
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, William Schein, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 18th day of April, 1919, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing on the merits the complaint in a vendee’s suit to enforce his lien on property in the former town of New Lots, Bangs county.
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Appeal by the plaintiff, William Schein, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 18th day of April, 1919, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing on the merits the complaint in a vendee’s suit to enforce his lien on property in the former town of New Lots, Bangs county. Alleging that the title was defective, or not marketable, the plaintiff sought a lien for $1,229, the amount of his deposit under a contract to purchase and expenses in examination…
1Dissent
Jenks, P. J. (dissenting):
I dissent and vote for reversal. The action rests upon the breach of the contract in that on the law day of the contract the defendant did not furnish a marketable title. The plaintiff was not bound to establish on this trial that the title is not good, but only that on the law day the title was unmarketable. In Moore v. Williams (115 N. Y. 586, 596) the court, per Earl, J., say in reference to the opinion of Peckham, J., in Methodist Episcopal Church Home v. Thompson (108 N. Y. 618): “ ‘ We disagree with the court at General Term upon the necessity, in such a case…
Also in this document: Concurrence.
2Cases cited17 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
- Burwell v. . JacksonNew York Court of Appeals · 1854
- Simis v. . McElroyNew York Court of Appeals · 1899
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