732





RECORD  AND   GUIDE





June 8, 1918





NEW YORK INCOME
CORPORATION

Bank of Commerce Bldg.

31 Nassau St., New York

T«lephoD8, Cortland 4706





FINANCES Operation of Apartment
and Easiness Properties

Short-Term INCOME Loans





If yoD are Owner, Operator or Man-
mger of Property, onr Booklet No. 2
will interest yon.





LEGAL    NOTES    AFFECTING    REALTY

Prepared by Committee on Real  Estate Laws of
Real Estate Board, Samuel P, Goldman, Chairman





Realty Supervision Co.

45 West 34th St., New York

Business Buildings Only

Completely maintained
and operated at a

Fixed Annual Contract Price

We supply and pay for

r  COAL
HELP

ALL   -! SUPPLIES

1   REPAIRS
I  INCIDENTALS
May we submit our estimate?





JOHN F. DOYLE & SONS

REAL ESTATE  AGENTS

BROKERS and APPRAISERS

74 Wall Street,             New York City

Management of Estates a Specialty
Member ef Board of  Broilers

Jobn F. Doyle    John F. Doyle, Jr.     Alfred L. Doyle





J.  CLARENCE DAVIES

BRONX BOROUGH
REAL ESTATE

149th STREET & THIRD AVENUE

Tel. Con.         Branch Office, 32 NASSAU ST.

Member of Board of Brokers





Let a trained and
equipped organization
manage your prop¬
erty.

SPEAR & CO., Real Estate

840 Broadway, New Tork





FIRM  OF

LEONARD J.CARPENTER

Agents              Brokers              Appraisers

25   LIBERTY   STREET

Branch:  Corner Third Ave. and 68th Sl.

Entire Charge of Property

D. X. Swainson        A. H. Carpenter        C. L. Carpenter





FRED'K FOX&CO.

Business Building Brolcers

14 W. 40th STREET and 793 BROADWAY







F.R.Wood,W.H.Dolson Co.





REAL   ESTATE  AND





MORTGAGE    LOANS





MANAGERS    OF    ESTATES





Broadway, cor. SOth St.     141 Broadway





A BROKER procured a lessee ready
*^ and willing to hire a building for
use solely as a garage. The prospective
lessee entered into an agreement as to
the terms ot lease with the owner, who
at the last moment refused to execute
the lease because the business could not
be carried on in the zone by reason of
the resolution adopted by the Board of
Jcstimate and Apportionment, under
Laws iyi6, c. 497, restricting such zone
to residential use. The New York Ap¬
pellate Division holds, Markovitz v.
Arrow Const. Co., 109 N. Y. Supp. 159,
that the broker was not entitled to a
commission. Everyone is presumed to
know of the Zuaing Resolution. The
owner was not called upon to attempt
to get the Board to change the boundary
of the residential zone where the build¬
ing was situated just because it had the
power to do so.

Reformation of Contract for Exchange.

In an action to reform a contract for
the exchange of lots and for a specihc
performance of the contract as re¬
tormed, the New York Appellate
Uivision holds, Flmn Realty Corp. v.
Charter Const. Co., 169 N. Y. Supp. 116,
that the fact that the defendant's
agent saw the plaintiff's lots before
tne contract of exchange was made
would not be notice to the defendant
that the plaintiff's lots were subject to
building restrictions, although the lots
were ot a uniform size and the build¬
ings thereon of a uniform distance from
the road. Whether the parties to the
exchange inadvertently omitted to men¬
tion in the contract that the plaintiff's
lots were subject to building restrictions
was held to be a question of actual
intention, and any knowledge of the
broker who acted lor both parties could
not be imputed to the defendant to
ascertain his intention.

Rescission  of Contract  of Sale.

The Minnesota Supreme Court holds.
Nelson v. Berkner, 166 N. W. 347, that
evidence of fraudulent promissory
representations made with no intention
to keep them and solely for the purpose
of inducing another to enter into a
contract may be proven, though at
variance with the written contract. But
such representations are not grounds
for rescission when the written con¬
tract, to the promisee's knowledge, re¬
veals the falsity of the promise; for he
cannot then be said to have relied
thereon in entering into the contract.
If, however, such a promise is based
upon false representations in respect
to existing facts made in connection
with the promise it affords a ground for
rescinding the contract induced thereby.

Breach   of  Covenant  to   Repair.

The Kansas Supreme Court holds that
where a landlord has agreed to repair
the porch of a dwelling house and fails
to do so, a tenant who knows of the
defective condition of the porch, and
continues to use it for several months,
cannot recover damages for a conse¬
quent injury, when by a slight outlay he
might have remedied the defect and
averted the injury, and could have
charged such outlay to the landlord
against the rent then due and unpaid.—
Murrell v. Crawford, 169 Pac. 561.

Discharge   of   Antecedent   Debt.

Although the courts are divided upon
the question, the numerical weight of
authority is to the effect that the com¬
plete satisfaction and discharge of an
antecedent debt is a valuable consider¬
ation for the conveyance of real prop¬
erty. The Oklahoma Supreme Court, Noe
V. Smith, 169 Pac. 1108, considers that
the weight of reason is also with that
holding. "For the one reason the courts
give for holding that an antecedent debt
is not a valuable consideration is that
the purchaser is placed in no worse posi¬
tion than he was before; that he has
parted with nothing of value. But where
there is a complete satisfaction and dis¬
charge of the debt, that is not true. For
there is a marked  distiuction between





taking property in complete satisfaction
and discharge of an antecedent debt, and
simply taking a mortgage on it to secure
an antecedent debt. And a failure of
some courts to bear in mind this dis¬
tinction is responsible ^or much of the
confusion on this question." The court
holds that a complete satisfaction and
discharge of a pre-existing debt to a
partnership is a valuable consideration
for the conveyance of real estate to a
member of the firm, since the proportion
of the sura credited upon the account
owned by the other members of the
firm is cast upon their member to whom
the real estate is conveyed.

Broker's Right to Commissions.

A realty broker was authorized to sell
at a minimum price of $32.50 an acre,
with the understanding that, if he sold
for as much as $35 an acre, he should get
a commission of 5 per cent., and if he
sold for not less than $33.25 and not
exceeding $35 an acre, he should get all
in excess of $33.25 per acre. The broker
sold for $37.50 an acre, after having en¬
deavored to get away from the original
contract when sending his principal a
telegram for permission to sell at $32.50.
The principal was not deceived into
making a new contract, or relinquishing
his rights, as he approved the contract
ot sale, which disclosed the real trans¬
action, on its receipt, safeguarding him¬
self by an accompanying letter, holding
the broker to the original agreement as
to compensation. The Alabama Supreme
Court held. Clay v. Cummins, 77 So. 328,
that the broker was entitled to a com¬
mission of 5 per cent, under the original
agreement, and his principal, not having
been misled, and having expressly rati¬
fied the sale on condition the broker
should be paid as provided by the orig¬
inal agreement, cannot set up that the
broker forfeited his right as intending
to get from under the original agree¬
ment. It was held that the broker was
entitled to the commission of 5 per cent.
provided in the agreement.

Purchaser's Equitable Interest.

In an action for the specific per¬
formance of an oral contract of sale
of real estate, with a prayer for relief,
it appeared that the plaintiff, the vendee,
took possefision and made such part
performance that the contract was
taken out of the statute of frauds. He
had an equitable interest. Certain in¬
stallments of the purchase price were
not due. The defendant could not be
required to take them in advance of
the due date. Therefore the plaintiff,
though he had an equitable interest,
could not call in the legal title. The
defendant repudiated the contract,
claimed that the plaintiff had no in¬
terest, and that he was the sole owner,
free of any claim of the plaintiff. The
Minnesota Supreme Court, Porten v.
Peterson, 166 N. W. 184, reversing judg¬
ment for the defendant, holds that the
trial court should have entered judg¬
ment, determining the rights of the
plaintiff and the defendant in the prop¬
erty; that is, that it should have deter¬
mined and adjudicated the equitable
title of the plaintiff resting upon the
defendant's legal title. The default of
the plaintiff in making payments when
due did not bar him of his equitable
interest in the absence of laches or
abandonment, or of forfeiture by the
affirmative action of the defendant, and
under the evidence none of these was
present, and strict payment was waived.

Investing Another with Authority.

When an instrument which clothes an¬
other with the indicia of title to prop¬
erty is used by him, the equities of inno¬
cent purchasers are protected. For
where the true owner holds out another
or allows him to appear as the owner
of, or as having full power of disposi¬
tion over, the property, and thus leads
a third person to do what he would not
otherwise have done, the owner will not
then be allowed to subject such third
person to loss or injury by disappointing
the expectations upon which he acted.—
Noe V. Smith (Okla.), 169 Pac 1108.