23 A.D.2d 894 | N.Y. App. Div. | 1965
Lead Opinion
In an action for partition and sale of a two-family house owned by plaintiffs and defendants as tenants in common, in which the defendants interposed a counterclaim for specific performance of an agreement between the parties dated March 21, 1956, under which each party was given an option to purchase the house, the defendants appeal from an order of the Supreme Court, Kings County, entered September 30, 1964, which: (1) denied their motion for summary judgment; (2) granted plaintiffs’ cross motion for summary judgments; (3) in effect declared said agreement to be invalid and unenforcible; and (4) directed that the property in question be sold in partition. Order reversed, without costs; plaintiffs’ cross motion for summary judgment is denied; defendants’ motion for summary judgment is granted; judgment is directed dismissing the complaint and in favor of defendants upon their counterclaim, without costs; and the action is remitted to the court below for the entry of an appropriate judgment accordingly. In our opinion, the parties’ agreement that neither set of owners would sell their one-half interest without first offering it to the other set of owners encompassed an agreement not to partition except upon that condition. This is so because partition would result in a sale to a third party and would thus, by indirection, emasculate the protection against sales to outsiders which the agreement was intended to provide (see Andron v. Funic, 194 App. Div. 258). The agreement in question is an
Lead Opinion
Beldock, P. J., Ughetta, Rabin, Hopkins and Benjamin, JJ., concur.