(dissenting). Plaintiff sues on a check. It is admitted that it was made and delivered by defendants. Payment was stopped thereon within the hour and the bank refused to honor its order.
The circumstances under which the check was given are as follows: A sale of real estate was held on May 23, 1923; the defendants Shapiro were bidders at the sale and the property was struck down to them for $107,250. They then drew their check on the Columbia Bank for the sum of $10,750, representing ten per cent of the purchase price, plus the usual knockdown fee, and delivered the same to the plaintiff.
The defendants Shapiro alleged that they delivered the check in question relying on certain facts set forth in the terms of the sale, and a certain catalogue, in which the property was described; that such facts were untrue and that the property was not as described in the terms of sale, and did not produce the rental represented therein; that the premises were advertised to be sold free of all incumbrances, while, as a matter of fact, the same were subject to the usual nuisance restriction; and that the premises were illegally used for factory purposes; and that they bid in the same relying solely upon the statements made by the auctioneer, and were thus deceived.
Upon the trial of the action the court directed a verdict for the defendants upon the sole ground that in 1838 the property was restricted against the usual nuisances, and that, as this usual restriction was not mentioned in the terms of sale, the court must conclude no liability could be found against defendants on the check.
I think the court ignored the fact that the action was brought to recover on a check for the payment of money, representing the first installment of the purchase price of property, and not for specific performance, and, therefore, the condition of the title was not an issue.
*493It is the undoubted rule that the payment of the earnest money, represented by the check, was independent of the covenant to convey free of restrictions, the performance of the first condition being prior in time.
This doctrine arises from the rule of construction that if a day be appointed for the payment of money and that day is to arrive, or may arrive, before the time when the consideration for the money is to be performed, the performance of the consideration is not a condition precedent to the right to recover the money.
Under the terms of sale the purchaser of said premises was to pay ten per cent of the purchase price, the auctioneer’s fee of twenty dollars for each lot sold, and Exchange Salesroom fee of five dollars for each knockdown to the auctioneer on day of sale; also the "purchaser was to pay the balance of the purchase money on or before the 22d day of June, 1923, when the deed would be ready for delivery. Thus the payment of the deposit constituting ten per cent of the purchase price was in no sense dependent upon the delivery of the deed. The covenants were wholly independent of one another.
“ It is a rule of construction that if a day be appointed for the payment of money, and that day is to arrive, or may arrive before the time when the consideration for money is to be performed, the performance of the consideration is not a condition precedent to the right to recover the money.” (Clark v. West, 137 App. Div. 23, 29.)
The only covenant in the terms of sale to be performed at the time that the same was signed was the payment of ten per cent of the purchase price. If later it developed that a good title could not be passed, the defendants then had their remedy at law, but until that time they could not assert a right which had not yet arisen.
“ A contract is entire when it appears that one party relies upon the performance by the other party of his promises and divisible when it appears that the reliance was on the promise of the other party and a remedy to recover damages.” (Clark v. West, supra.)
The seller was under no obligation to be in a position to convey title until the time fixed for the conveyance.
The judgment is wrong and should be reversed and judgment directed for plaintiff for $10,750.
Dowling, P. J., concurs.
Judgment affirmed, with costs.