281 A.D. 804 | N.Y. App. Div. | 1953
Order insofar as it denies defendants’ motion to frame issues to be submitted to the jury reversed on the law and motion granted in that respect, and otherwise order affirmed, without costs of this appeal to any party. Memorandum: The plaintiffs lost all rights to compel specific performance against the defendants Marotta when they entered into the later contract with the defendant Orlando. (Saperstein v. Mechanics é Farmers Sav. Bank, 228 N. Y. 257, 260; Cohen, v. A. F. A. Realty Corp., 250 N. Y. 262; Potter v. County of Essex, 272 App. Dir. 969; Price r. Kline, 278 App. Div. 657.) When they commenced the action they were, however, entitled to equitable relief to compel the Marottas “ to cancel of record the agreement dated January 16, 1952, between the plaintiffs and” the defendants Marotta. This these defendants have done by recording the quitclaim deed after the action was commenced. The issues between plaintiffs and defendants Marotta are now limited to the breach of contract and damages. “ The rule has been modified since the Code practice which authorizes the joinder of legal and equitable causes of action, and while the equitable relief will be denied in such a case, now the action will be retained and the issues as to the breach of contract and damages will be sent to a jury for trial.” (Baffey v. Lynch, 143 N. Y. 241, 247; see, also, Saperstein v. Mechanics & Farmers Sav. Bank, supra, p. 262, and cases cited.) The order insofar as it denies the motion of the defendants Marotta to frame issues to be submitted to the jury should be reversed and the motion granted. The questions submitted appear to be the only issues of fact to be determined between plaintiffs and the defendants Marotta. All concur. (Appeal from an order denying defendants-appellants’ motion to frame issues for a jury trial, in an action to compel defendants to specifically perform a contract for the purchase of realty.) Present — Taylor, P. J., MeCurn, Yaughan, Kimball and Piper, JJ.
