Appeal from an order of the Supreme Court (Dier, J.), entered December 22, 1987 in Warren County, which, inter alia, granted defendant First National Bank of Glens Falls’ motion to dismiss the complaint against it.
This is an action for specific performance of an alleged contract for the sale of real property. Defendants held title pursuant to the terms of the will of Earl T. Woodward which gave title to defendant First National Bank of Glens Falls (hereinafter the Bank) and defendant Katherine E. Woodward (hereinafter Woodward), each hаving an undivided one half interest as tenants in common. The Bank’s interest is as trustee of a trust created by the will.
Although a formal real property contract between plaintiff and defendants was drafted and sent to plaintiff, it was signed by no one. Plaintiff seeks to establish the validity of the alleged contract by a series of letters, most of which were written by David Krogmann, the attorney for Woodward who
Before Supreme Court were certain affidavits which included copies of a proposed formal contract and letters from Krogmann to plaintiff and a letter from the Bank to plaintiff. The proposed сontract was rejected by plaintiff, who contends that he informed Krogmann that he did not agree with the description of the property as it was contained in the formal аgreement. As previously stated, that contract was never signed by any of the parties. The letters from Krogmann to plaintiff did nothing other than to establish a desire on the part of defendants to sell the property and to recognize that there were certain legal difficulties which required some clarification before title could be conveyed. On January 10, 1987, some six months after the proposed contract was rejected, plaintiff delivered a check in the amount of $7,000 as a down payment to Woodwаrd who accepted and endorsed said check. The record is not clear but it is presumed that plaintiff was reimbursed the $7,000 when defendants decided to accept another offer for the property. That check was the only writing signed by plaintiff which we find in the record and that does not set forth the essential elements of the transaction (see, Rothvoss & Sons v Estate of Neer,
It was plaintiffs contention that Krogmann’s statements made in regard to the transaction were binding upon both defendants, making the defense of the Statute of Frauds inapplicablе to the motion. He produced no writing which could be construed as authority for Krogmann to execute a written note or memorandum of the agreement on the part of Woodward. As to the Bank, plaintiff refers to a letter written by a senior vice-president of the Bank on October 14, 1987 which notified him that the Bank had decided not to sell the proрerty to him. Included in that letter was the following language: "Mrs. Woodward’s attorney has, with our permission, done all the negotiating with prospective buyers. * * * In this case the commitment had to be made by Mrs. Wood
The Statute of Frauds requires that: "A contract for the leasing for а longer period than one year, or for the sale, of any real property, or an interest therein, is void unless the contract or some note or memorandum therеof, expressing the consideration, is in writing, subscribed by the party to be charged, or by his lawful agent thereunto authorized by writing” (General Obligations Law § 5-703 [2]). From a reading of the completе record we conclude that there never was a meeting of the minds of all parties as to all material aspects of an agreement of sale. Although the requisitе memorandum may be pieced together from several writings and parol evidence may be introduced as support, it is essential that the separate writings clearly rеfer to the same subject matter or transaction (Rothvoss & Sons v Estate of Neer, supra; see, Crabtree v Arden Sales Corp.,
Consеquently, the order granting the Bank’s motion should be affirmed because of the valid affirmative defense of the Statute of Frauds, but not because the complaint did not state a сause of action as found by Supreme Court. The record does not contain any disposition of Woodward’s motion and no explanation of the lack thereof hаs been presented to this court. For the sake of judicial economy, we take it upon
The main thrust of plaintiffs opposition to Woodward’s motion was that Woodward had waived the protection of Gеneral Obligations Law § 5-703 (2) by serving an answer which did not allege that affirmative defense. Although such failure under many circumstances would constitute a waiver (see, CPLR 3211 [e]; Marcoux v Marcoux,
Finally, we turn to plaintiffs argument that Supreme Court abused its discretion by not granting his cross motion to amend his complaint (CPLR 3025 [b]; see, Fahey v County of Ontario,
Order modified, on the law, with costs, by inserting a provision granting the motion of defendant Katherine E. Woodward and dismissing the complaint against her, and, as so modified, affirmed. Mahoney, P. J., Kane, Weiss, Mikoll and Harvey, JJ., concur.