This is an appeal from an order of the Appellate Term reversing a judgment of the .'Municipal Court of the eleventh district, borough
The complaint alleged that the plaintiff and the defendants entered into a written contract whereby the defendants agreed to convey to the plaintiff certain property at .the office of the Title Guarantee and Trust Company, 175 Rernsen street, Brooklyn; that the consideration for said transfer was $7,400, upon which the plaintiff paid the defendants, upon the signing of said contract, the sum of $300, and on the day and at th§ time and place mentioned in said contract for the delivery of the deed, the plaintiff attended ready and willing to perform, and tendered performance thereof, but no one appeared on behalf of the defendants and the defendants were not ready and willing to perform said contract or to deliver said deed, and, therefore, plaintiff notified the defendants that she elected to rescind the said contract and demanded the return of said sum of $300, which sum, not having been repaid, judgment therefor ivas demanded.
The answer admitted the contract and the payment of the deposit, denied the allegation that the plaintiff had performed her part of the contract, and alleged that the defendants had performed their part of the contract. A counterclaim of a strictly legal character was interposed. No equitable defenses were interposed and no equitable relief, was asked for.
The contract provided for the closing of title on August 3,1906, at ten a. m. There is no dispute in the evidence that the plaintiff appeared at the time and place, duly tendered performance, and after waiting some considerable time and the defendants not appearing, went away. The defendants wrote a letter dated two days after the date' of closing in which they said: “ I was sorry you could not wait at the Title Guarantee Co. as you had left when I got there. You know Mr. Colton had my contract so somehow I misunderstood the time and thought it was to be at twelve o’clock. However, it would not have made much difference as, on account of the plumbers’ strike, I was unable to complete the work, and under such circumstances I could not expect to close title that day. The Title Co. would not give title until it was completed.”
It must be clearly borne in mind that this is not an equitable
We have carefully examined the cases cited in the opinion of the learned Appellate Term (53 Misc. Rep. 621), and think that they are clearly distinguishable from the case at bar, either because the contract and conduct of the parties clearly negatived the proposition that time was of the essence of the contract, or because the nature of the action or the. defense injected equitable considerations into the controversy. We do not think that any of them has shaken the long and well-established- rule that in an action at law time is to be considered as of the essence of a contract for the purchase and sale of real estate.
Patterson, P. J., Ingraham, Houghton and Scott, JJ., concurred.
Determination reversed, with costs, and judgment of Municipal Court reinstated. Settle order on notice.