123 N.Y.S. 738 | N.Y. App. Div. | 1910
Lead Opinion
. Plaintiff appeals from- a judgment entered upon an- order madé at the commencement of the trial of - this action," which granted ■defendants’ motion to dismiss the complaint.- The motion was made on the pleadings.” As the .answer contained no defense by .way of counterclaim, the question really is whether the complaint stated facts which entitled plaintiff to the relief prayed for.
■It appears that on July 30, -1906¿ defendant' Rebecca E. Pendleton, .then being the owner of the premises described in the com
The learned trial court dismissed the complaint upon the ground that plaintiff was not entitled to a specific performance of the agreement to sell. In this we think the court erred. It is undoubtedly the general rule that to warrant a decree for specific performance the contract must be mutual in its obligations and in its remedy. (4 Pom. Eq. Jur. [3d ed.] § 1405; Palmer v. Gould, 144 N. Y. 671; Stokes v. Stokes, 148 id. 708.) But it has been generally supposed that where the owner of property for a consideration gave to another an agreement in writing, signed by him, to the effect that within a specified time lie would sell such property, describing it, at a price named, and within such time the person to whom the agreement was given determined to avail himself of the offer, and so notified the maker thereof and demanded performance, such agreement became mutual and was enforcible. (Jones v. Barnes, 105 App. Div. 287; Pettibone v. Moore, 75 Hun, 461; Boston & Maine Railroad v. Bartlett, 3 Cush. 224.) The learned counsel for the respondents claim, and the learned trial court seems to have held, that
The judgment appealed from should be reversed and a new trial. granted, costs to abide the final award oí, costs.
Woodward; Jenks and High, JJ., concurred; Oarr, J.-, concurred in separate memorandum.
Concurrence Opinion
I concur with Mr. Justice Burr in his opinion that the judgment for the defendants on the pleadings should not have been granted. Under her complaint, the. plaintiff might have shown that the option agreement and the lease were made and delivered as part of one and the same transaction. Actual notice of the option agreement on the part of the defendants is alleged. The case would then t stand on the same basis as if the option agreement was contained in the lease itself. It is quite common to find such option agreements in,leases. It would be going very far to hold that such agreements in leases are not enforcible in equity. If such is to be held, then the holding would be quite contrary to the common understanding pf the parties. I think that the Court of Appeals in its opinions in Wadick v. Mace (191 N. Y. 1) and Levin v. Dietz (194 id. 376) did not intend to declare that option agreements in leases, at least, were beyond the protection of equity, under proper circumstances.
Judgment reversed and new trial granted, costs to abide the final award of costs.