Opinion
May 15, 1967
Judgment of the Supreme Court, Richmond County, dated December 29, 1964, directing specific performance in favor of plaintiff, reversed, without costs, and plaintiff's motion for summary judgment denied; order of said court, dated February 3, 1966 and made on defendant's motion for reconsideration, modified by striking out the second and third paragraphs thereof, which directed adherence to the original decision, etc., and by providing in lieu thereof that defendant's original cross motion for summary judgment dismissing the complaint is granted; and said order, as so modified, affirmed insofar as appealed from, without costs. The action is for specific performance of a contract for the sale and purchase of vacant land owned by the City of New York and located in the Borough of Richmond, or in the alternative for money damages. The contract was made pursuant to an auction sale conducted by the city on May 9, 1957, in which the premises were sold to plaintiff's assignor for the sum of $81,500. The terms and conditions of sale provided, in part: "The right is reserved to withdraw any parcel from sale and to reject any and all bids and sales. In the event the City * * * exercises its right to reject any bid or sale, the successful bidder shall be entitled only to the return of the sum paid on account of the bid * * *, and the parties shall be mutually released of all their obligations under the terms of sale" (emphasis supplied). They further provided that title was to be closed within 90 days from the date of sale, which would be August 7, 1957. On or about May 24, 1957 the City's Bureau of Real Estate notified plaintiff that the sale was cancelled because the property was required for public purposes. It appears that the contemplated use is for a shorefront parkway, the route of which is laid out by statute (Highway Law, § 349-f). On June 27, 1957, prior to the closing date, the City's Board of Estimate adopted a resolution which directed a refund of the deposit to plaintiff's assignor. Such refund was accepted without protest. The resolution did not expressly provide for cancellation or rescission of the contract and the Special Term held that as a consequence it failed to effect such result. In our opinion, this was error. It is clear that all concerned considered the resolution to have intended and effected a cancellation of the sale (cf. Margolin v. City of New York, N.Y.L.J., Aug. 4, 1965, p. 9, cols. 3-4). Such was the practical construction given thereto by the parties in the tender and acceptance of the refund of the deposit, as provided in the contract in the event of cancellation. In the circumstances, the fact that the resolution did not mention rescission in haec verba does not detract from such meaning. There is no proof that the city acted in bad faith or took undue advantage of respondent in the premises. The case cited by respondent ( Portnoy v. City of New York, N.Y.L.J., July 27, 1966, p. 10, col. 7) is inapposite, for there the property was sold to another after the cancellation. Beldock, P.J., Christ, Brennan, Rabin and Hopkins, JJ., concur.