Ambler v. Owen , 1854 N.Y. App. Div. LEXIS 129 ( 1854 )

By the Court,

T. R. Strong, J.

The complaint does not set forth an agreement by which the defendant was bound to accept the relinquishment of the house and lot, and receive possession of the same ; and if the defendant had refused to do so, upon a tender thereof by the plaintiff, an action to compel him to do it, or to recover damages for his refusal, would not lie. A proposition was made by the defendant to the plaintiff to pay him thirty dollars, if the plaintiff would give up the house and lot for the term of the lease, and allow the defendant the immediate possession. It is not averred that the plaintiff assented to it at the time ; and without his assent, no legal obligation was incurred by the defendant. Mutual consent is requisite to the creation of a valid contract.

But it is alleged in the complaint, after stating the proposition of the defendant, that the plaintiff did give up the house and lot, and allow the defendant to have possession of the same. This must be understood to have been intended to be in pursuance of the proposition. It is implied from the allegation that the giving up was for the term, and that the defendant accepted the premises, and took possession thereof. (Gazley v. Price, 16 John. 267.) In this view the proposition was actually performed, on his part, by the plaintiff, which performance was accepted by the defendant; both treating the proposition as remaining in force, and nothing remains to be done but the payment of the thirty dollars. Here, certainly, are facts sufficient • to constitute a cause of action.

The case made by the complaint is, in fact, one of a sale by the plaintiff of his rights under the lease, at the request of the defendant, in which light his proposition, connected with his subr sequent act, may be regarded, and a delivery to and acceptance thereof by the defendant, at the price of thirty dollars.

The case of De Zeng v. Bailey, (9 Wend. 336,) which is much relied on by the defendant’s counsel, is distinguishable from the present. In that case there was, so far as the defendant was concerned, merely a proposition by him, nnassented to; what was done by the plaintiff towards executing it was not done to or with the defendant, or requested or accepted by him.

[Monroe General Term, December 4, 1854.

Johnson, Welles and T. R. Strong, Justices.]

I am therefore of opinion that the complaint is good, and that the judgment of the county court should be affirmed.