Genevetz v. Feiering

121 N.Y.S. 392 | N.Y. App. Div. | 1910

Thomas, J.:

The vendees in an action for the sale of real estate assigned the contract to the plaintiff, who brought an action for specific per: formalice, uniting as defendants Feiering,'the vendor; Friedman, the purchaser from Feiering; Fromson, a purchaser from Friedman, and McGuire, a purchaser-of part of the property from Fromsori. The court found that the complaint should be dismissed as to Fromson, McGuire and Friedman, and that no cause of. action in equity was established as to any other defendants, and that the plaintiff have an order placing the case as to Feiering upon the calendar for the trial of issues by jury. The judgment embodies the finding,--except as to the permission -for a jury trial as regards Feiering. The appeal is from' the judgment only. It was found “That there was no assumption on the part of the plaintiff herein of the obligation to purchase the real property described in the complaint.” The evidence is not returned. As there is no evidence or finding that the assignee assumed any personal liability for the performance of the contract, he cannot maintain this action. (Hugel v. Habel, 132 App. Div. 327.) There is an entire absence of mutuality between the assignee and the vendor, which precludes the relief plaintiff seeks. ( Wadick v. Mace, 191 N. Y. 1.)

The- judgment should be affirmed, with costs.

Jenks, Rube, Rich and Cabe, JJ., concurred.

. Judgment affirmed, with costs.

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