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Hodes v. Dunsky

August 10, 1951


Jayne, Wm. J. Brennan, Jr., and Vanderwart. The opinion of the court was delivered by William J. Brennan, Jr., J.A.D.


[15 NJSuper Page 29] Following this court's reversal of a summary judgment in defendants' favor, Hodes

v. Dunsky , 5 N.J. Super. 333 (App. Div. 1949), plaintiff obtained a judgment in Essex County Court upon a jury verdict for the deposit paid by her under her contract with defendants for the purchase of real estate. Defendants' motion for a new trial was denied by the trial court. Their appeal here challenges the denial of their motion for judgment made at the close of the case and raises again the question, as may be done under the Rules (Rules 1:2-20, 4:2-6 and 3:59-1, as amended), whether in any event the jury's verdict should not be set aside as contrary to the weight of the evidence.

The test whether there was error in denying the motion for judgment requires that plaintiff's evidence be accepted as true and that she have the benefit of all legitimate inferences in her favor that may be drawn from the record. We have viewed the record in that light. Plaintiff proved that she was anxious to move her family from an apartment above her husband's tavern. Defendants' house was vacant and for that reason its purchase was particularly desired by plaintiff because houses available for occupancy were hard to find in that period of housing shortage. Defendants had already contracted to sell to one Janoff under an agreement fixing September 1, 1948, for the closing of title. Plaintiff acquired the contract from Janoff after specifically telling defendant Joseph Dunsky that she "needed it (the house) right away." The formal assignment was executed September 2, 1948, and as part of the transaction defendants exacted a deposit of $1,750, or $1,000 more than the deposit called for by the contract, and extended the closing date to October 15, 1948. An attorney, Mr. Levy, represented plaintiff in this transaction.

The Midtown Savings & Loan Association held a small mortgage on the house. Plaintiff personally negotiated an increase in the amount of the mortgage. The association attorney, Mr. Rosenberg, mailed her its commitment on October 7. Plaintiff badgered Mr. Rosenberg and defendants' attorney with telephone calls seeking assurance that the

closing would take place on schedule. "Mr. Rosenberg became angry with me for bothering him." However, the scheduled closing did not take place because Mr. Rosenberg's search disclosed an outstanding judgment against defendant, Joseph Dunsky, of which Mr. Rosenberg advised defendants' attorney by letter of October 14 and of which, according to plaintiff, defendants' attorney advised her the next day. Plaintiff also testified that defendants' attorney told her at the time, "Wait, we are trying to clear it up," "it would take a couple of days."

A week later plaintiff telephoned defendant Joseph Dunsky who, she said, told her "my attorneys are working on it," "I don't know what I can do for you." She was not satisfied and told him, "I want my money back." She enlisted the aid of her husband and sister, both of whom testified to telephone conversations with Dunsky; the sister's testimony was that when she pleaded with Dunsky to give plaintiff "the house or give her the money back," Dunsky's response was, "Business is business. I can't give her money back. It is my benefit and her loss."

Plaintiff then "got disgusted" and in early or mid-November consulted another attorney, Mr. Davimos, "to get my money back for me." Mr. Davimos required a written assurance from Mr. Levy that the latter had no objection to plaintiff's retention of another attorney, which writing plaintiff obtained from Mr. Levy on December 1. In the afternoon of December 2 Mr. Davimos upon plaintiff's instructions mailed a registered letter to Joseph Dunsky formally rescinding the contract and demanding the return of the deposit.

Meanwhile, in the morning of December 2, defendants' attorney, after a prolonged but unsuccessful effort to clear the record of the judgment by other means, had obtained a court order permitting the payment into court of the amount due on the judgment. Plaintiff was unaware of this when she instructed Mr. Davimos to mail the letter. Mr. Rosenberg and Mr. Levy knew of it because defendants' attorney had shown each of them a copy of the order during the

morning. However, neither of them communicated with plaintiff on that day.

The contract does not stipulate that time is of the essence and defendants insist there are no circumstances which are persuasive that that is the case. They therefore argue that plaintiff could not declare defendants in default without first making a supplemental demand that the title be closed by a given day sufficiently after the making of the demand to constitute the interval a reasonable time, and, it being conceded that no such demand was made, that their motion should have been granted. They rely on Paradiso v. Mazejy , 3 N.J. 110 (1949); Williams v. Sanacore , 11 N.J. Super. 51 (App. Div. 1951); Nissel v. Swinley , 76 N.J.L. 288 (Sup. Ct. 1908); Schlecter v. Hollander , 11 N.J. Super. 236 (App. Div. 1951); Barba v. Gunsberg , 3 N.J. Misc. 714 (Sup. Ct. 1925); Dooley v. Kushin , 105 N.J.L. 595 (E. & A. 1929). Those are cases in which extensions of the closing date were expressly agreed upon by the parties. Where such an extension agreement appears, even though ...

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