Charles O. Downs and Others, Respondents, v. Edgar Lehman, Appellant

Charles O. Downs and Others, Respondents, v. Edgar Lehman, Appellant. Second Department, December 5, 1907. Pleading — vendor and purchaser — approval of title —duty of vendee. A vendor’s complaint for the specific performance of a contract to purchase lands is not demurrable because of a failure to allege that the title to the described premises was approved by a title insurance company as provided in the contract. This, because the approval of the title was not imposed upon the vendor, hut the provision merely entitled the vendee to refuse to take" title if he found that the guaranty company would not approve it. A plaintiff is only obliged to allege performance of conditions precedent on his .part. Appeal by the defendant, Edgar Lehman* from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Suffolk on the 8th day of April, 1907, upon the decision of the court, rendered after a trial at the Suffolk Special Term, overruling the defendant’s demurrer to^ the complaint. The complaint is- by seller against purchaser for the specific performance of a contract for the purchase of real "estate. The contract, which is made part of the complaint, contains" the following separate clause: “ The' title to the premises above described to" be. approved by the Lawyers’ Title Insurance Company It is claimed that the complaint is insufficient for lack, of an allegation' of such approval. Boskowitz & Levy, for the appellant. Timothy M. Griffing [Ernest W. Tooker with him on the brief], for the respondents. [MAJORITY — (xAYNOB, J. :] (xAYNOB, J. : The rule requiring a complaint to allege performance. by the plaintiff of all conditions precedent on his part to his fight of action is ancient and undoubted. • ft lias been incorporated in our '"code of practice by a provision that,such requirement is sufficiently complied, with by a general allegation that the plaintiff “ duly performed all the conditions on his part ” (Code Civ. Proc. § 533). But the clause of this contract that the title is to be approved by the title insurance company imposes no condition on the plaintiffs’, part.. The title has to be ¿xámined by the defendant — by- the purchaser* not- by the sellers—and the meaning is that the said title-company is to do it for him, if he chooses, and that he is not' to be obliged to take- the title unless it approves.of it. It is a thing not uncommon for a purchaser of - land, or of municipal bonds, and the like, to put in the ' contract of purchase a condition that title or validity is to be subject •to the approval of a (counsel named. That is-not a condition precedent oil the seller’s part, i. e.,- for him to. perform, or to be performed on his part. It is for the purchaser to have such counsel ex'amine the title and approve or disapprove before, the contract day, and that lie disapproves is a defence to be pleaded. It is for the purchaser to object 'to title on the contract day on the ground of. such disapproval, and failure to do so is a waiver. The. seller may not even know that the counsel examined the title .at all (and. he may iiot have -done so), much less be able to plead that lie approved it. A plaintiff is only obliged to allege performance of conditions precedent on his part, i. e., to be performed on Iris part, and-not conditions to be performed by the' defendant, or which depend on him for performance (McManus v. Western Assurance Co., 43 App. Div. 550). The case of Flanagan v. Fox (6 Misc. Rep. 132) lias no bearing whatever on this case. Here we have only a question of pleading, while there there was no question of pleading. There the title was examined, and disapproved by the title company. designated by the contract, and the purchaser then brought the action to recover back the amount lie had paid on the contract, alleging such, disapproval in his complaint, and recovered. The judgment should be affirmed. Jenks, Hooker, Eich and Miller, JJ., concurred. Judgment affirmed, with costs..