Campbell v. Prague
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, John G. Prague, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 6th day of December, 1895, from the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 19th day of December, 1895, denying the defendant’s motion for a new trial made upon the minutes.
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Appeal by the defendant, John G. Prague, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 6th day of December, 1895, from the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 19th day of December, 1895, denying the defendant’s motion for a new trial made upon the minutes. The action was brought to recover damages for the breach of a contract to convey to the plaintiff the premises No. 137 West Eighty-sixth street,…
1Opinion of the Court
Barrett, J.:
It lias finally been settled in this State that the mere fact of the existence, at the time fixed for the concurrent, mutual performance of an executory contract for the conveyance of real estate, of a lien or incumbrance upon the property which it is in the power of the vendor to remove, does not relieve the vendee from the necessity of 'making a tender and demand of performance as a condition precedent to the maintenance of an action to recover money paid on the contract. (Ziehen v. Smith, 148 N. Y. 558.) This case disapproves of the rule laid down in Morange v. Morris (3 Keyes,…
2Cases cited4 opinions
- Koehler v. . AdlerNew York Court of Appeals · 1879
- Ziehen v. . SmithNew York Court of Appeals · 1896
- Mayer v. . DeanNew York Court of Appeals · 1889
- Morange v. MorrisNew York Court of Appeals · 1866
3Cited by14 opinions
- Charles H. Brown Paint Co. v. ReinhardtNew York Court of Appeals · 1914
- Griesemer v. HammondCalifornia Court of Appeal · 1912
- Hollingsworth v. RuckmanMontana Supreme Court · 1924
- Bowers v. Ocean Accident & Guarantee Corp.Appellate Division of the Supreme Court of the State of New York · 1906
- Grosso v. SporerNew York Supreme Court · 1924
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