Quinto v. Alexander

107 N.Y.S. 422 | N.Y. App. Div. | 1907

Gaynor, J.:

This action is to recover back $50 paid by the plaintiff to the defendant as a deposit on a contract for the purchase by the former of the latter of a .lot of land. The defendant did not refuse performance, but the -’plaintiff claims the right "to recover on the ground that the contract was not sufficiently expressed in writing to satisfy the statute of frauds. But this is wholly irrelevant. It is only the vendor who can raise that question. Even if-.the contract be oral, the. vendee has to carry it out or forfeit the amount which lie has paid, on a tender of performance by the vendor. The statute only requires'tliat the contract of sale be reduced to writing and signed by the vendor; the vendee dogs not need to sign it (Real Property Law, § 224; Collier v. Coates, 17 Barb. 471; Pelletreau v. Brennan, 113 App. Div. 806).

The judgment should be reversed.

•• Woodward, Jenks, Hooker and Rich, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.