Chasra Co. v. Beach Thirty-First Street Corp. , 228 A.D. 645 ( 1929 )

— -Judgment reversed upon the facts, with costs, and judgment directed against defendant and in favor of plaintiff for the sum of $20,750, with interest from the 3d day of August, 1925, with costs. Defendant admits in its answer that the sum of $20,000 was paid upon the contract, and its witness Herrick, a lawyer of twenty-five years standing at the bar, testified affirmatively that the fee of $750 for examination of the title was not excessive. While we are of opinion that the learned trial court was right in basing its judgment upon conditions existing at the time of the rendition of judgment (Breckenridge v. Cary, 195 App. Div. 156), it now appears that, after the entry of judgment, the respondent conveyed a part of the premises in question to a third party, thus placing it beyond its power to carry out the judgment. This fact appears by a certified copy of an instrument between the Beach Thirty-first Street Corporation and Nathan Levin, recorded in the office of the register of the county of Queens on the 2d day of May, 1929, in liber 3292 of Deeds at page 538, and made a part of the record of this court by an order hereof, entered the 8th day of November, 1929. Under the circumstances, defendant may not retain the money paid on account of the purchase. If this conveyance had been made prior to the trial, judgment would have been granted the plaintiff upon its complaint, upon proof of that fact. (Cohen v. A. F. A. Realty Cory., 250 N. Y. 262.) New findings and conclusions in support of this decision will be made. Young, Rich, Kapper, Hagarty and Carswell, JJ., concur. Settle order on notice.