This record presents a novel situation. The plaintiff seeks in this action as a vendor to compel the specific performance of a contract for the sale of No. 47 West 86th street, in the city of New York, to the defendant. The contract bears date the 20th day of August, 1900, and the consideration expressed therein is $57,500. The plaintiff was thereby obligated to convey to the defendant on the 12th day of the following September the said premises free and clear of *Page 55 all incumbrances, except a mortgage and certain restrictions against nuisances therein mentioned.
It became a matter of discussion at the time the contract was drawn, and on several other occasions between the date thereof and the law day, whether the taxes for the year 1900 were a lien upon the property. As the law day approached it was stated by the plaintiff that as the Appellate Division in Burr v. Palmer (53 App. Div. 358) had decided at the July term, 1900, that the taxes did not become a lien upon real estate until warrants were duly issued for the collection thereof, and as warrants would not be issued before the law day, September 14th, 1900, he was not liable to pay the taxes for that year. On the other hand, the defendant insisted that as the ordinance levying the taxes for 1900 was passed by the municipal assembly on the 15th day of August, and was approved by the mayor on the 25th day of August, that the taxes were confirmed as of that time, and, consequently, were a lien on the day for passing title.
It was in this situation, when each party was insisting that the other was liable to pay these taxes, which amounted to $786.69, that they undertook to adjust their differences by agreement.
On the 12th of September, 1900, the plaintiff addressed a letter to the counsel for defendant, containing, among other things, this proposition: "As the decision is against Mr. Joseph, have him pay the taxes when due and I will sign an agreement to refund the money if the decision is reversed." The decision referred to was the case of Burr v. Palmer (supra).
On the next day, September 13th, the defendant's counsel answered this letter, in which he said, among other things: "I beg to acknowledge receipt of your esteemed favor of yesterday's date, telling me that you think Mr. Joseph should pay the taxes and that you would sign an agreement to refund the money if the decision of the second department is reversed. * * * I would suggest as the most expedient way to adjust the matter to allow Mr. Joseph to deduct the amount of the taxes from the purchase price, and Mr. Joseph, *Page 56 who you know is amply responsible, will give a bond, and if the Court of Appeals decides that the taxes are not liens after they have been confirmed, but something else later must take effect, we will pay the amount deducted from the purchase price with interest thereon at the legal rate."
On the same day the plaintiff answered this letter as follows: "Replying to your favor of to-day, in reference to the payment of taxes on No. 47 West 86th street, I would say that the way you propose is satisfactory to me. I will be on hand to-morrow to pass title."
Thereafter the title was closed in accordance with this agreement, the amount of taxes being allowed to remain in the hands of the defendant.
It appears that the warrants for the collection of taxes for the year 1900 were not issued until after this title was closed.
It is alleged in the complaint that the plaintiff allowed the amount due for taxes to remain in defendant's hands for about eighteen months, and in the interval it was ascertained that no appeal was taken to the Court of Appeals in said case of Burr v. Palmer (supra), and that the time to take such appeal had expired. Thereupon the plaintiff demanded payment by the defendant of said amount retained for taxes, which was refused, and this action was instituted for the specific performance of the contract to compel the payment of the balance due of consideration money, based on the theory that plaintiff was not liable to pay the said taxes.
It was stipulated on the trial of this action that no appeal was taken to the Court of Appeals from the judgment in Burr v.Palmer (supra), and that the time within which such appeal should have been taken had expired.
We are of opinion that it was competent for the parties to adjust their differences as they did, and as no appeal was taken to the Court of Appeals, or is now possible, in the case ofBurr v. Palmer (supra) they must abide by the law of that case as laid down by the Appellate Division of the second department without regard to its binding authority.
We express no opinion as to the point of law involved, as *Page 57 the question is not before us and has not been argued or dealt with in the briefs.
The judgment appealed from should be affirmed, with costs.