130 N.Y.S. 382 | N.Y. App. Div. | 1911
This is an action for the specific' performance of an oral agreement to execute a lease. The defendant Sarah J. Brooks was the owner of a leasehold estate in premises situated on the north side of West Fifty-fifth street, between Eleventh avenue and the Hudson river, in the borough of Manhattan. When the contract in suit was made her lease had eleven years and three months to run and contained a provision that at its termination the landlord at his option would either purchase any buildings that may have been constructed upon the premises at a price to be determined in a specified manner or would grant a renewal of the lease for a similar term. The rent reserved was $1,500 a year. It is undisputed that the defendant Racich approached the defendant Charles J. Brooks, a son of the defendant Sarah J. Brooks, with a proposition to lease the said, premises or a part of them for the purpose of conducting thereon his business of manufacturing asbestos materials. He also proposed to give Charles an interest in the business if the latter could contribute $10,000. Thereupon those propositions were submitted to Mrs. Brooks, who agreed to give a lease of a part of said premises and to loan Charles
Although the agreement was void for - not being in writing, I shall assume that, if satisfactorily established, it has been so far performed as to be taken out of the Statute of Frauds. It is an elementary rule that a court of equity will not enjoin specific performance of an agreement unless tit is definite and certain in its terms. (Stanton v. Miller, 58 N. Y. 192; Sharkey v. Larkin, 52 id. 623; Mayer v. McCreery, 119 id. 434.) It is also well settled that to justify specific performance of a contract it must be established by satisfactory proof. (Lobdell v. Lobdell, 36 N. Y. 327.)
The evidence to establish the agreement consists of the testimony of the. defendant Racich. He testified that at the first interview between him and the defendants, Sarah-J.’Brooks and Charles J. Brooks, the old lease was produced and read aloud by the latter; that then “ it was said, will that be — will we get that lease, the same lease you have ? He [meaning. Charles] said'the same thing.’ * * * I asked them, ‘Is
We have then so far as the disputed point is concerned, the following elements: An alleged agreement, void for not being in writing; the evidence, relied upon to establish it, somewhat equivocal and, at the best, unsatisfactory; a preponderance of evidence against the making of it; a writing made under such circumstances that, presumably at least, it included all of the terms of the oral agreement. We think that, under those circumstances, the court was not justified in ■ decreeing, specific performance. '
The judgment, should be reversed and a new trial granted, with costs to appellants to abide the final award of costs.
. Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellants to abide event.