Manhattan Theatre Club, Inc. v. Bohemian Benevolent & Literary Ass'n

Judgment, Supreme Court, New York County (Seymour Schwartz, J.), after trial, entered September 30,1983, dismissing a complaint for specific performance of a contract to convey real property, is affirmed, without costs. U The facts are as stated in the dissenting opinion. However, we reject the notion that the concept of delivery should be confined to a contract involving a leasehold interest. As the Court of Appeals noted in 219 Broadway Corp. v Alexander’s, Inc. (46 NY2d 506, 511), the concept of delivery is not an archaic principle of property law, but rather is “fundamental to the conveyance of an interest in land.” Analyzing the practicalities of the situation, in language as equally applicable to transactions in real estate as to leasehold interests, the court noted (pp 511-512): “[Djelivery serves a very practical, end. It is a common practice in the contemporary business world for parties to draft and sign instruments of 789 conveyance prior to the time at which they intend their contemplated transaction to become irrevocable. By requiring delivery, the law facilitates the true expectations of the parties by ensuring that the interest in the property is not conveyed until that moment when the parties so intend.” H The dissenters see the extended delay between signing and ultimate repudiation of the contract as an indication that rejection of the contract was “only * * * an afterthought.” The facts, as related in the dissent, clearly belie that conclusion. Plaintiff’s attorney was made aware, contemporaneous with the notification that the contract had been signed, that there was “trouble” with the approval, clearly “bad news” for the prospects of consummation of the transaction. Plaintiff was thus put on notice of anything but a “clear intent” to convey the property interest at the time of signing. Plaintiff certainly did not have to wait two months to realize that approval of the sale by defendant’s board of delegates was very much in jeopardy. Under such circumstances, armed with such knowledge, it would have been impossible for plaintiff, at any time during those two months, to have inferred or construed a delivery of the signed contract of sale. The passage of time merely made more obvious the hesitation of defendant, a state of mind clearly sought to be protected by the Court of Appeals in adhering to the requirement of delivery in 219 Broadway Corp. v Alexander's, Inc. (supra). In viewing the delivery concept as a manifestation of “the intent of the parties that an interest in the land is, in fact, being conveyed”, the Court of Appeals, while referring to a leasehold interest, cited authorities which would apply the principle equally to the conveyance of a deed to real property. (46 NY2d, p 512.)* Where the prospective purchaser is on notice that there are doubts as to the approval of conveyance, especially where those doubts evince hesitation as to whether the transaction will be in the best interests of the conveyor’s membership (see Church of God v Fourth Church of Christ, Scientist, 76 AD2d 712, 718, affd 54 NY2d 742), the burden of proving delivery or nondelivery shifts to the prospective purchaser (15 NY Jur [rev ed], Deeds, § 47). Manifestly, plaintiff has not borne that burden here. Concur — Sandler, J. P., Silverman and Fein, JJ. Footnotes [*] “The legal requirements of delivery and acceptance imposed on deeds are also placed on leases as conveyances of interests in land.” (3 Thompson, Real Property [1959 ed], § 1059; see 7 Thompson, Real Property [1959 ed], § 3229: “The ‘execution’ of a deed means the making thereof, which includes all acts such as signing, sealing and delivering.”)