Citation Numbers: 28 A.D.2d 50
Filed Date: 6/29/1967
Status: Precedential
Modified Date: 1/12/2022
Defendants appeal from a judgment directing specific performance of an option agreement and execution and delivery of a warranty deed to premises located in the Town of Cicero, County of Onondaga.
Beginning in 1961 plaintiff began acquiring options on properties which were part of a 200-acre site north of Syracuse for the purpose of developing a shopping center. In February and March, 1962 plaintiff’s representatives attempted to obtain an option on defendants’ premises, which- comprised about 61 acres of the desired site, but without success. On March 2 they were advised by defendants’ attorney, Gingold, that a deal had been made by defendants with others. In fact, on that date Gingold, with the authority of defendants, had granted a six-month option to purchase to a Rochester corporation, Westbrook Acres, Inc. Subsequent thereto, on August 14, 1962, defendant Paul Abel himself gave Westbrook an eight-month option to lease which was succeeded by a new six-month option to purchase executed on March 5, 1963 for a consideration of $3,000. This option extended to August 31, 1963 and contained a provision for a six-month renewal for an additional $3,000 to expire February 28,1964. It also was made assignable by the optionee and on May 13, 1963 the option was assigned to plaintiff by Westbrook. Notice of the assignment was given by plaintiff directly to defendants on July 25, 1963, together with a check for $3,000 for an extension of the option to February 28, 1964. Plaintiff did this by dealing directly with Mr. Abel without consulting Gingold.
Nothing further happened until February 13, 1964 when Dwyer, the attorney for plaintiff, was advised that a surveyor was seeking to obtain the abstract of title to defendants’ prop
Gingold’s testimony confirmed the fact that he and Dwyer had a conversation on February 14, 1964 and that he had said that as far as he knew it was all right to deliver the abstract to the surveyor. As to the balance of the conversation, his testimony varied in some detail in that he testified he told Dwyer
The record also discloses that on March 4, 1964 plaintiff learned that Abel was showing the property to others, and on that day authorized Dwyer to exercise the option. When Dwyer informed Abel of the February 14 conversation with Gingold, Abel replied that he had never heard of that conversation until after the option had expired, that he was free to negotiate with other people and had made an appointment to show the property to others. On March 5 Dwyer mailed by registered mail a formal notice to Abel exercising the option and then personally called on Abel and told him that the notice had been mailed. After an extended discussion Abel said other things being equal he would just as soon sell to plaintiff but he intended to get the top dollar for his property. The area had been rezoned in 1963 thereby increasing the value of defendants’ property. On March 11 defendants contracted to sell to others who are not parties to this action.
Plaintiff, claiming that an equitable estoppel had been established precluding defendants from asserting that plaintiff’s exercise of its option was untimely, commenced this action for specific performance.
The lower court has granted judgment for plaintiff upon a finding that its exercise of the purchase option in March, 1964 was timely and proper. This conclusion was predicated upon a determination that the attorney Gingold was defendants’ attorney in regard to the option on the subject realty, that as such attorney he could, in proper circumstances, estop defendants from asserting the expiration of the option, and that defendants were in fact estopped from such assertion under the circumstances shown in this case.
In our view, the record does not permit a judgment for plaintiff founded upon an estoppel, because there was no reliance upon any promise made by defendants and the estoppel is based
Moreover, an essential element of estoppel is reliance. (Lynn v. Lynn, 302 N. Y. 193, 205; Byrne v. Barrett, 268 N. Y. 199, 208.) In the present case this would mean that plaintiff would have to have relied upon Gingold to keep the option open and exercisable until he communicated back to Dwyer the result of a conversation with defendant Paul Abel concerning an extension. However, there could be no such reliance by plaintiff in face of the knowledge — transmitted to its agent and attorney Dwyer — that Gingold was without power to keep the option alive beyond its expiration date. Defendants are therefore not estopped to deny what Gingold expressly said he had no authority to extend — viz., the February 28, 1964 termination date of the option.
The line of cases stemming from Imperator Realty Co. v. Tull (228 N. Y. 449) and including Triple Cities Constr. Co. v. Maryland Cas. Co. (4 N Y 2d 443), cited by plaintiff, is not appropriate to the present action. In those cases, in which
In sum, the principle of estoppel is not applicable ‘to this case; the acts relied upon as giving rise to this equitable doctrine were acts of an alleged agent who — to the knowledge of plaintiff— could not within the scope of his authority bind defendants to acceptance of a late exercise of the purchase option. If plaintiff wanted to purchase the property it should have exercised the option by registered mail prior to February 28, 1964, as specified in the option, and not waited until March 5, 1964 to do so.
The judgment should be reversed and the complaint dismissed, with costs.
Bastow, J. P., Goldman, Henry, Del Vecohio and Marsh, JJ., concur.
Judgment unanimously reversed on the law and facts, with costs, and complaint dismissed, with costs.