46 A.D.2d 907 | N.Y. App. Div. | 1974
— In an action by vendees for specific performance of an alleged contract to sell certain real property, plaintiffs appeal from a judgment of the Supreme Court, Westchester County, dated January 31, 1974, (1) in favor of defendants in accordance with an order of the same court, dated October 29,1973, which granted defendants’ motion for summary judgment, (2) directing cancellation of a Us pendens and (3) setting the action down for assessment of damages sustained by defendants by reason of the prior grant to plaintiffs of a temporary restraining order. The appeal brings up for review said order. Judgment and order affirmed, without costs. In our opinion the motion for summary judgment was properly granted. The purpose of the Statute of Frauds is to remove uncertainty and prevent imposition through the assertion of unfounded and fraudulent claims, by requiring that certain contracts “or some note or memorandum thereof” be in writing (General Obligations Law, § 5-703, subd. 2). Although a memorandum is not itself the contract, but only written evidence of it, the memorandum, in order to satisfy the Statute of Frauds, must designate the parties, identify and describe the subject matter and state all the essential or material terms of the contract (Tobias v. Lynch) 192 App. Div. 54, affd. 233 N. V. 515; 56 N. V. Jur., Statute of Frauds, § 165). In the instant case the memorandum does not meet the requirements of the Statute of Frauds. It does not include all of the material terms of the contract and the purchaser is not sufficiently identified. The purchaser is described therein solely as “ Villano ”, The $100 deposit was paid by a cheek signed by one Alphonse Villano. However, that person is not one of the plaintiffs in this action and not one of the alleged purchasers. Further, the memorandum does not include the time or terms of payment. The rule of law cited by the dissenters, to wit, where the time of payment is not specified in a contract for the payment of money it is payable on demand, clearly is not applicable here. This is so in light of the admission in the complaint that the parties had agreed that, in addition to the $100 deposit paid at the time of execution of the oral agreement and memorandum, “ the plaintiffs would pay the sum of ten percent upon the signing of a formal contract and the balance in cash at the time of closing” (see Galletta v. Zuckerman, 122 N. Y. S. 2d 10). This essential