Gilden v. Moehlau

Judgment and order affirmed, with costs. Memorandum: The contract for the sale of the real property was complete. It provided for a mortgage in part payment of the purchase price. The terms of payment of the mortgage were set forth in the contract. The mortgage tendered was in statutory form (Real Property Law, § 258, schedule M). It contained the statutory covenants. The fact that the tendered mortgage did not contain a covenant against alteration of buildings without consent of the mortgagee is no defense to the purchaser’s action for specific performance of the contract. The contract did not call for such a covenant and there is no such statutory covenant. The answer alleges no agreement that the mortgage was to ‘contain such a covenant. Such a covenant, not included in the statute, may not be implied as being within the intention of the parties. (Ansorge v. Belfer, 248 N. Y. 145.) Were the rule otherwise, a party to a valid contract for the purchase and sale of real property which involved a purchase money mortgage, could with impunity, avoid such contract by merely insisting upon the insertion in the mortgage of some unusual or uncustomary covenant. All concur. (The judgment is for plaintiffs in an action to compel specific performance of a contract for the sale of certain premises in Buffalo, N. Y. The order resettled a previous order and struck out the answer of defendant and directed judgment for plaintiffs.) Present — Taylor, P. J., Love, Vaughan, Kimball and Piper, JJ.