#### Mitchel Lippman, Appellant, *v.*Samuel Hauben, Respondent.

(Supreme Court, Appellate Term,

June, 1905.)

Contract — To remove buildings before acquisition of title — Rescission — Recovery of consideration.

Where by the terms of an entire contract for the sale of five houses and their demolition within fifteen days, upon a twenty-four hours’ notice, it is provided that in case the seller did not take title to the property until the first of the succeeding month (March), the contract should be void and the consideration returned to the buyer, he may, in the event of the seller not acquiring title at the time specified, elect to consider the contract void and recover the consideration paid, or is entitled to an opportunity to remove the buildings within a reasonable time after the time set for the acquisition of the title; and a notice given by the seller to him on April twelfth, to take possession of and remove three of the buildings is ineffectual for any purpose.

■ Appeal by the plaintiff from two judgments of the Municipal Court of the city of Mew York, thirteenth district, borough of Manhattan.

Levy & Leibner (Aaron J. Levy, of counsel), for appellant.

Ilantrowitz & Esberg (Moses Esberg’, of counsel), for respondent.

Scott, J.

On February 7, 1905, an agreement was entered into between one Lippman Abel and the defendant whereby Abel agreed to pay and did pay $500 for certain old buildings at Park avenue and Eighty-third street in the city of Mew York, and also agreed to remove all materials at said buildings within fifteen days and to start within twenty-four hours’ notice. The agreement contained the following clause: “ It is further understood that the party of the first part (the respondent) has no title as yet, and will not take title until the first of March. In case the *669party of the first part will not receive title then, this contract shall he considered void and, therefore, will return the above amount.” On the same day, with the consent of defendant, Abel assigned the contract to the plaintiff-appellant, who at the same time paid to respondent the sum of $200 to be paid by respondent to Abel, in case respondent should give the right to tear down the buildings according to the agreement made. It was further agreed between plaintiff and defendant as follows: “ In any other event that said buildings will not be torn down and the contract be void, then the sum of Five hundred dollars together with the said two hundred dollars shall be returned to said Lippman without interest and either party shall be released from all obligations.” Hauben, the defendant, did not take title on March first, and indeed has never taken title, but on March twelfth, title to the property was taken by a corporation known as the Hauben Fealty Company, of which the defendant Hauben is an officer. On March first, appellant called upon respondent with reference to commencing work on the houses and found that he could not commence the work of wrecking the buildings because respondent had not yet acquired title and the buildings were still occupied by tenants. Appellant thereupon demanded a return of the two sums of $500' and $200 which was refused. There were five buildings included in the agreement, and on April twelfth, respondent notified appellant to proceed to take possession of and remove three of them; the other two being still occupied by tenants could not be wrecked and were not included in the notice. In fact they were still occupied until within a few days of the trial on May twenty-fourth. According to the strict letter of the contract the appellant had the right to elect that it be considered void, when on March first respondent had not acquired title and could not give the requisite authority to appellant to proceed with the removal of the buildings. The respondent strenuously argues, however, that, as between the parties, time was not made of the essence of the contract, except as regards appellant’s obligation to begin work within twentyffour hours after notice, and to complete it within fifteen days. Even if this be *670conceded, however, it does not justify the judgments appealed from. If there was no date at all specified in the contract, the law would require that opportunity to proceed with the work should be afforded within a reasonable' time, especially since the appellant had already paid full consideration. The appellant’s assignor had virtually agreed that he should not be permitted to go on before March first, but he was certainly entitled to an opportunity to do so within a reasonable time thereafter. Such opportunity he has not received. The contract was an entire one for the demolition of five houses. It was not within the contemplation of the contract that he should remove them one by one. The notice of April twelfth, therefore, was ineffective for any purpose because it applied only tó three houses, and not to all of them. So far as appears he never received, up to the very day of trial, either notice or opportunity to carry out his contract as it was made.' In our opinion he was well within his rights in electing to declare the contract void and suing for the money paid in consideration thereof! 1

The judgments should be reversed, with costs, and judgments ordered for the appellant with appropriate costs in the court below.

Dugbo and MacLean, JJ., concur.

Judgments reversed, with costs, and judgments ordered for appellants, with costs in the court below.