116 Misc. 555 | N.Y. Sup. Ct. | 1921
This is an action to compel specific performance by a vendor of an agreement to convey certain property. Plaintiff is the assignee of the vendee, and had by an' appropriate instrument assumed all the latter’s obligations under the agreement of sale. It is not claimed that the vendor (defendant) assented either to the assignment or to the assumption of the vendee’s obligation. On the other hand, there is no question but that the assignee has> tendered and is able to make full performance of the vendee’s obligation. The defendant’s first and main point is one of law, to the effect that “ in no event can the assignee of the vendee under a contract for the purchase of real estate maintain an action for specific performance unless there has been an assumption and a novation.” Although I have concluded to dismiss the complaint for complainant’s practically willful default, defendant has so earnestly urged the point of law referred to upon the court’s attention that I feel it should be disposed of. This is more particularly true because of the peculiar condition in which I find the authorities, as I.shall point out. Defendant’s counsel, as authority for his proposition, cites in the order named: Hugel v. Habel, 132 App. Div. 327; Murphy v. Hurley, 155 id. 465; Forbes v. Reynard, 46 Misc. Rep. 154; Schuyler v. Kirk-Brown Co., 193 App. Div. 269; Izzo v. Ludington, 79 id. 272; Genevetz v. Feiering, 136 id. 736; Ide v. Brown, 178 N. Y. 26; Ryan v. Pistone, 89 Hun, 78. The syllabus of Hugel v. Hdbel directly supports defendant’s contention. The only difference between the two cases is that in that case the action was to impress a lien for the purchase money, while in the instant case it is for a conveyance of the property. On examination of Hugel v. Habel, however, it will be found that the syllabus completely misstates the actual decision of
Complaint dismissed.