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Goldman v. Willis

Morris Goldman v. Isabella M. Willis

Goldman v. Willis, 64 A.D. 508 (1901)
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Court
Appellate Division of the Supreme Court of the State of New York · State Appellate Courts
Decided
October 15, 1901
Citations
64 A.D. 50872 N.Y.S. 292
Headnotes
Tender and request to perform—tliey are prerequisites to an action to recover money paid under a contract óf sale of real property. Where an executory contract for the sale of real estate fixes no time for the final transfer of the title, but it is the understanding of the parties that such transfer shall he made within a few days of the signing of the contract, the vendee cannot maintain an action to recover the amount of an advance payment made by Mm upon the contract, on the ground that the- vendor is in default, without making a tender of the amount due and requesting the. vendor to perform.
Summary
Appeal by the plaintiff, Morris Goldman, from a judgment of the Municipal Court of the city of New York in favor of the defendant.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court

Text extracted by OCR from a scanned original; check the original for exact wording.

Per Curiam :

This is an action in the Municipal Court to recover $100, this . being the amount of an advance payment upon an executory contract for the sale of real estate, the plaintiff claiming that the defendant is in default in conveying the property.

While there was no time fixed in the contract for the final transfer, the evidence is conclusive that there was an understanding that it was to be within a few days of the signing of the contract. The ■. plaintiff never made any tender of the amount due; never asked the defendant to perform, and under the rule laid down in Ziehe n *509 v. Smith ( 148 N. Y. 558, 560 ) the judgment dismissing the complaint upon the merits should be affirmed, with costs.

Present Goodrich, P. J., Woodward, Hirschberg, Jenks and Sewell, JJ.

Judgment of the Municipal Court affirmed, with costs.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1914: 219142026peak 1914 · 2

Relies on it most ⓘ

  1. Helm v. Rone1914 OK 279, 141 P. 678
  2. Hall v. Yaryan138 P. 339 (Idaho 1914)

Most recent

  1. Helm v. Rone1914 OK 279, 141 P. 678
  2. Hall v. Yaryan138 P. 339 (Idaho 1914)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 1

DepthCaseCited by
Ziehen v. Smith, 42 N.E. 1080 (N.Y. 1896) 59

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