Lichenstein v. Davis

Judgment modified by striking out the award of $2,000 damages based upon appellant’s inability to convey all of the land, and as modified the judgment is unanimously affirmed, without costs. The defendant’s inability to convey all of the land contracted to' be sold was. the result of an innocent mistake; and in such a case the vendor should not be charged with damages claimed to be the difference between the contract price and the value of the land. (Northridge v. Moore, 118 N. Y. 419, 422; Margraf v. Muir, 57 id. 155, 159; Schwimmer v. Roth, 111 Misc. 654, at p. 656.) There is no finding; nor should there have been, that defendant was guilty of bad faith in the making of the contract. Findings of fact and conclusions of law inconsistent herewith are reversed. We find appellant’s requests to find numbered 4, 5 and 6, which were refused by the trial court. Present — Lazansky, P. J., Kapper, Hagarty, Scudder and Davis, JJ.