105 N.Y.S. 676 | N.Y. App. Div. | 1907
■ This is a suit to enforce specific performance of a contract to convey real estate. The appellant is the owner of the real ’ estate,
It' appears, that the appellant was served with the summons after making the affidavit for her motion herein, and before the notice of motion was served. This did not suffice to enable the court below to deny her motion as matter of discretion, in view of the facts of this case of the long neglect, and that the appellant, ás app’ears by the complaint itself, never made.the written contract sued on.
The order should be reversed and the' motion granted.
■ Jenks and Miller, JJ., concurred, the latter in result; Hirschbeeh, P. J., and Rich, J., dissented.
Order reversed, with ten dollars costs and disbursements, and 'motion granted, with costs.