Burbach v. Sinram 237 N.Y. 600

Edward Burbach, Appellant, v. Mary Sinram et al., Respondents.

Contract — lease — option to purchase — specific performance — action to compel specific performance of option contained in lease.

Burbach v. Sinram, 206 App. Div. 773, affirmed.

(Submitted January 17, 1924;

decided February 26, 1924.)

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 27, 1923, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term. This action was brought to enforce specific performance of a covenant of option contained in a lease reading as follows: "It is further covenanted and agreed that any time-during the term of the lease or the renewal thereof, the party of the second part shall have the first option to purchase the said premises at the price of Sixteen Thousand ($16,000.00) Dollars and the parties of the first part will not sell or convey said premises without first giving the party of the second part at least sixty days written notice of their intention to sell or convey in order that he may exercise the said option to purchase the same.” The plaintiff contended that he possessed an absolute option to purchase the premises at any time during the term of the .lease or the renewal thereof at the agreed price of $16,000. On the other hand, the defendants contended that to get the true intention of the parties at the time of the execution of the option clause, one must read in the words " parties of the first part desire to .sell.”

Morrell Schwimer for appellant.

Frederick W. Bitter for respondents.