Albany Heights Realty Co. v. Vogt

Putnam, J.: Although the parties presumably had considered the question of building a riding academy and stables on the land that was the subject of this contract of sale, there was no evidence of such accident or mistake in the wording of the agreement as would call on a court of equity to reform this agreement by inserting the clause set up in the. answer. Defendant had reserved a complete power to cancel on ten days’ notice, which, no doubt, was rightly deemed to cover any future eventuality that might make it desirable to withdraw from the contract. By the notification of January 27, 1917, however, defendant formally advised plaintiff that he would take title on 'February' 28, 1917, so that he definitely elected to accept the property. On the faith of this notice, plaintiff incurred expense of removing the tenant, with loss of rental, as well as subsequent carrying charges. The later review of the determination by the board of appeals by certiorari (People ex rel. Beinert v. Miller, 100 Misc. Rep. 318) made specific performance inequitable. A court of equity, however, is not powerless when it declines to grant specific performance, and may decree damages as compensation (1 Pom. Eq. Juris. [3d ed.] § 237), especially where, as here, both sides sought equitable relief, and in this complaint the two alternatives of specific performance and money damages had been pleaded. [739] In view of all the circumstances, plaintiff should recover such damages as it sustained and was caused to incur after January 27, 1917, by reason of defendant’s not taking title as he had agreed. The cause should, go back to the Special Term to ascertain and to adjudge such pecuniary damages. The judgment is, therefore, reversed with the conclusions of law, as are also the findings numbered 5th and 9th; the finding numbered 19th modified, and findings numbered 22d and 23d stricken out and new findings substituted in accordance herewith. The cause is remitted to the Special Term with directions to proceed and to decree the damages sustained by the plaintiff after January 27, 1917, with costs to plaintiff to abide the final award of costs. Jenks, P. J., Mills, Blackmar and Kelly, JJ., concurred. Judgment reversed, with costs to the plaintiff to abide the final award of costs, and case remitted to the Special Term with directions to ascertain plaintiff’s damages, in accordance with opinion. Order to be settled on notice' before Mr. Justice Putnam.