Faiman v. Gordon ( 1946 )

Plaintiff’s appeal is from an order of the Albany Special Term which denied his motion for summary judgment of specific performance of a contract for the sale of "real estate entered into by him as vendee and defendant as vendor on or about April 12, 1946. The only issue disclosed stems from the fact that plaintiff did not appear and tender performance on the very day of closing as named in the contract. Such day and date was not made the essence of the contract. It is undisputed that plaintiff had good reason for the eight-day adjournment he timely requested and which was not refused until after the contract date for closing had expired. Por aught that is shown plaintiff was entitled to the adjournment. Order reversed on the law and motion for summary judgment of specific performance sued for granted, with $50 costs, and the matter of the ascertainment and assessment of plaintiff’s alleged damages remitted to the trial court. Heffernan, Brewster and Poster, JJ., concur; Hill, P. J., and Lawrence, J., dissent.