Opinion
March 19, 1926.
Appeal from Supreme Court of New York County.
Richard B. Hand, for the appellants.
McDonnell Lebett [ George J. McDonnell of counsel], for the respondent.
The proposed contract or option to purchase alcohol was unperformed by defendant. Plaintiffs assert damage. The validity of the option is undisputed. The option expired on a legal holiday. The General Construction Law (§ 25), which extends the time of performance of a condition of a contract until the next business day following a public holiday, is in spirit at least in conformity with the action of plaintiffs in tendering performance of the option on the day following the holiday on which their option would have otherwise expired. While an option is not a strict contract until it is made a mutual obligation by acceptance, yet it is so obviously contractual in its inherent nature as to come within the general term and is governed by section 25 Gen. Constr. of the General Construction Law.
The judgment appealed from should, therefore, be reversed and a new trial ordered, with costs to the appellants to abide the event.
DOWLING and MERRELL, JJ., concur; FINCH and MARTIN, JJ., dissent.
The option here was not a contract; it was an offer which required acceptance. Therefore, section 25 Gen. Constr. of the General Construction Law has no application. ( Ganss v. Guffey Petroleum Co., 125 App. Div. 760; Dauber v. Reznik, 200 id. 650.) In any event, the option or offer was not accepted in the terms thereof.
I, therefore, dissent and vote for affirmance.
FINCH, J., concurs.
Judgment reversed and new trial ordered, with costs to appellant to abide event.