Antoville v. Bernard

220 A.D. 210 | N.Y. App. Div. | 1927

Per Curiam.

Plaintiff sues specifically to enforce as a contract a paper reading:

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“ Received from H. Antoville one hundred dollars deposit on lease for store & part basement 787 Mad. Ave. at 4500 for 5 yrs. $5500 for five years and $7000 for balance of term of lease of building, Tenant shall have option to purchase lease on July 1 /27 if not previously sold for higher sum- for the sum of $26000, cash less mortgage then on lease.

“ This is binding as far as the store is concerned.

“ MARIE BERNARD “ HENRI ANTOVILLE.”

Defendant appeals from an order denying the motion for judgment on the pleadings dismissing the complaint for failure to state a cause of action by reason of the insufficiency of the memorandum. The memorandum fails to state the time of the commencement of the lease or the time or method of payment of the .rent. It contains none of the clauses customarily used in leases of business property in the heart of the city of New York. It is indefinite as to what part of the basement it covers. The clause “ This is binding as far as the store is concerned ” impliedly signifies that the memorandum is not otherwise binding. It follows that the parties did not regard it as binding with respect to the basement, and there is no basis for apportionment of the stated rental between store and basement. The memorandum is too vague and indefinite to be treated as an agreement capable of specific enforcement. (Weill Co. v. Creveling, 181 App. Div. 282; Pollak v. Dapper, 219 id. 455; Ansorge v. Kane, 244 N. Y. 395.)

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Present — Dowling, P. J., Mebrell, McAvot, Martin and Proskauer, JJ.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.