Bronxwood Homes, Inc. v. Bivona

Matthew M. Levy, J. So much of my decision dated February 25, 1957 (which grants plaintiff’s motion for summary judgment) as allows $527 for expense of title examination and $315 for survey charges is amended as follows: (1) The sum for title examination is, on consent, fixed.at $300. (2) The sum for survey charges is disallowed as not covered by the contract. “ Where the vendee in good faith is at expense for investigating the title, or for attorney fees, or other similar expense, and the contract of sale fails, due to the fault of the vendor, such expenditures of the vendee may be recovered for, in addition to the amount he has paid on the purchase price.” (48 A. L. R. 59 and cases cited.) However, the parties to a contemplated sale, by their contract, may limit a recovery of damages in the event of breach to such damages as the agreement provides for. (Northridge v. Moore, 118 N. Y. 419, 423.) The present contract limits the purchaser’s recovery — in the event of the seller’s default — to a return of the purchase price, plus the “ net cost of title examination ” or the “ net cost of examining the title ” (in one place the clause is typed in the agreement and in another place it is printed). These phrases do not ordinarily include survey charges. (Terzo v. Stratford, 892 104 N. Y. S. 2d 278, 282.) In 17 A. L. R. 2d 1354, the headnote of section 17 is entitled “ Title, legal, and survey fees ”, which is some indication that survey fees are considered as separable from the cost of title insurance and attorneys’ services. In Ledsal Realty Cory. v. Demkin (141 N. Y. S. 2d 686, 690) the court employs the expression ‘ ‘ but without damages for title expenses or survey ”, also indicating noninclusion of survey charges in the cost of title examination. In Weiss v. Sachs (112 N. Y. S. 2d 97, 99) a survey charge was again listed as separate from 1 ‘ the reasonable expense of examining title ’ ’ and “reasonable attorney fees”. The present contract does not in terms contemplate a survey, and no proof has been presented to me that the survey here was necessarily a part of the instant title examination. The order, as submitted herein, has been corrected and signed accordingly.