Sullivan, Kolovsky and Carton. Carton, J.A.D. (concurring).
Plaintiff, alleging that it had exercised an option given it to lease defendants' property for 50 years, instituted this action for damages resulting from defendants' refusal to execute and deliver the lease. Defendants' motion for summary judgment was granted and plaintiff appeals. We affirm.
We do not agree with plaintiff's contention that the option could be exercised merely by service of written notice of election to exercise it. Properly interpreted, the writings granting the option required that acceptance of the offer be manifested by written notice of election and "in addition" by payment of the first year's rent of $20,000 on or before July 1, 1966, the date when, as provided in the writings, the option expired. (It may be noted that the only evidence that plaintiff gave "written notice of election" to exercise
the option is that to be inferred from the notation on the check hereinafter referred to.)
Since plaintiff concedes that payment of the $20,000 was not made on or before July 1, 1966, we turn to the alternative argument advanced by it, that there had been a valid oral extension of the time for the $20,000 payment so that the option was effectively exercised by the alleged tender of $20,000 within the extended period.
The parties agree that on Friday, July 1, 1966, at about 5 P.M., plaintiff's president, Arnold Oliner, delivered to defendant William H. Selle a check for $20,000 drawn by plaintiff to the order of the defendant corporation, with a notation thereon indicating that it represented rent for one year. (Plaintiff says that on Saturday, July 2, it delivered a check for $20,000 dated July 1, in replacement of the check delivered on July 1 because it was discovered that by reason of a "typographical error" on the first check, the notation thereon read that it represented rent for the period from January 1, 1967 to December 31, 1968 instead of for the period from January 1, 1967 to December 31, 1967). Saturday, July 2, and Monday, July 4, were bank holidays. On Tuesday, July 5, Selle presented the check to the bank on which it was drawn. Plaintiff's account had insufficient funds; the check was protested for nonpayment.
What otherwise transpired is disputed by the affidavits submitted on the motion for summary judgment. In considering the alleged extension agreement and its effect, we accept, as we must on such a motion, the version given for plaintiff in the affidavit of its president Oliner.
Oliner says that when he handed the check to Selle on July 1, 1966, he advised Selle
"that there were not sufficient funds in the bank to cover said check on that date, but that the check would be made good during the normal course of deposit after the July 4th weekend. Mr. Selle advised me that he would hold the check until the middle of the following week,"
"In keeping with my agreement with Mr. Selle, on July 6, 1966, I deposited the sum of $20,000.00 to cover the check which had been issued to the defendant corporation ...