180 A.D. 62 | N.Y. App. Div. | 1917
This action was brought to procure the specific performance of a contract between the plaintiff and the defendant Reiss whereby the defendant agreed to sell and deliver to the plaintiff all of the shares of the capital stock of the defendant Nevah Construction Co., Inc., the owner of certain real estate, and also agreed that a third party would advance $25,000 as a building loan. On the failure of the defendant Reiss to perform, plaintiff brought this action and in the complaint demanded judgment merely that the defendants specifically perform the contract. The complaint alleged that plaintiff had no adequate remedy at law, and no demand was made for a money judgment. It appearing that the third party had refused and continued to refuse to make the loan of $25,000, obviously there could be no decree for specific performance. This was known to the plaintiff before the action was begun. Plaintiff claims that, notwithstanding, if he could establish that the refusal of the third party to make the loan was due to the acts of the defendants, plaintiff was entitled to a money judgment. Defendants had the right to a jury trial if the action was for damages for breach of contract. This is not a case where the defendants can be said to have waived that
The judgment should be reversed and the cause remitted to the contract calendar for trial, with costs to the appellant to abide the event.
Clarke, P. J., Laughlin, Dowling and Page, JJ., concurred.
Judgment reversed and cause remitted to contract calendar for trial, with costs to appellant to abide event. Order to be settled on notice.