222 A.D. 119 | N.Y. App. Div. | 1927
The question presented by this appeal is whether a particular term of an alleged contract had been agreed upon so as to entitle the plaintiff to specific performance of the contract. The action was brought for specific performance of a lease of real property. After a trial at Special Term, the court decreed specific performance. The decree cannot be sustained because the term of the written memorandum is indefinite and the record does not show that the parties ever reached an agreement as to the term of the contract in dispute.
“ I, the undersigned, Anna Volpe, declare to lease the restaurant hall to Mr. Giovanni Palombi at No. 402 East 116th Street, for the period of five years together with five years additional as optional and give the said Mr. Palombi permission to place electric sign or other kind of sign.
“ 2. An opening or passage way through the hall of the house.
“ 3. To transfer the kitchen of the restaurant to the floor above.
“ 4. To also use the floor above for dining.
“ 5. The exclusive use of the dumbwaiter.
“ 6. The right to sell or sublet the business.
“ 7. To give to Mr. Palombi the floor or rooms above the restaurant (well cleaned) as soon as Mr. Giosuele Natella moves out.
“ 8. To give an inclosed space in the cellar to store stock used in his business.
“9. To give heat.
“ 10. Mr. Palombi shall give two months’ deposit for the restaurant hall and the current month, which receipt is hereby acknowledged of $100 as security for the performance of the present conditions and shall be included in the lease which is to be made at the earliest possible moment.
“ New York, 30th of October, 1923.
“ (Signed) ANNA VOLPE,
“ GIOVANNI PALOMBI.
“ P. S. The monthly rent for the hall (ground floor) will be $80 for the first year and at the rate of $100 per month for the remaining term. For the rooms above the restaurant the rent shall be $50 per month, and when the landlord shall place a new bath she shall receive $5 per month (additional) for only 12 months.
“ (Signed) ANNA VOLPE,
“ GIOVANNI PALOMBI.”
The following day the plaintiff moved into a portion of the premises, namely, the ground floor, and has occupied and paid rent for the same ever since. Owing to a dispute concerning the location of the passageway through the hall, touched on in the alleged memorandum agreement, the parties never executed a formal lease of the premises and the plaintiff never obtained possession of the other portions of the premises. Upon this record the whole dispute concerns the passageway through the hall. When
In another portion of the plaintiff’s testimony the following appears: “We were trying to reach a settlement — so much so that we went even downstairs into the cellar to see whether
It thus clearly appears from the corroboration of the defendant’s testimony by that of the plaintiff that the parties never reached an agreement at the time of the making of the memorandum with respect to the location of the passageway and thereafter, in attempting to act under the memorandum, were unable to agree as to where the opening should be placed. As against this positive testimony, the plaintiff urges a possible inference of agreement as to the location of the opening from the fact that the attorneys of both parties were trying to have the tenement house department approve of making a passageway where the door previously had been located, to which efforts it appears the defendant had consented. Any such inference, however, is offset by testimony that the defendant would not consent unless the tenement house department approved and by the direct corroboration of the defendant’s testimony that there had been no such agreement by the testimony of the plaintiff as above noted, so that any finding to the effect that the parties had reached an agreement as to the place of such opening when the memorandum agreement was signed or thereafter, is against the weight of the evidence. It does further appear that the plaintiff made an opening by force and that because of this the tenement house department filed a violation against the premises. The effect of the decree appealed from, therefore, is to place the defendant in a most unfortunate situation, since by said decree she must specifically consent to permit an opening which constitutes a violation of the Tenement House Law and apparently is prevented by said decree from protecting herself against the consequences of continuing to violate said law.
The plaintiff urges that he is entitled to have a decree of partial specific performance in that the plaintiff is willing to take the premises and waive that portion of the agreement relating to the passageway or reserve a claim for damages in respect thereto. A complete answer to this contention on the part of the plaintiff lies in the fact that the aforesaid term of the agreement relied upon, was never agreed to. The parties, by their own acts, demonstrated that this term was an important element of the transaction. The defendant not only has consistently refused to consent. to the opening in question, but has declined to deliver
The doctrine of a partial specific performance applies where an agreement has come into existence and thereafter, for some reason, one of its terms cannot be performed. If the agreement is severable and the circumstances permit, it is possible for the plaintiff to have a partial performance of such portions as can be performed. The case at bar, however, is not such a case because here the agreement never fully came into being. If the parties by their acts -or otherwise have made a different or compromise agreement pending the_ determination of this action, that is a different issue altogether.' It does not suffice to change the principles applicable to the issues presented by this record.
Findings of fact inconsistent with this opinion should be reversed and new findings made and the judgment appealed from reversed, with costs and the complaint dismissed, with costs.
Dowling, P. J., McAvoy and Proskauer, JJ., concur; Mebrell, J., dissents.
Judgment reversed, with costs, and the complaint dismissed, with costs. Settle order on notice.