Walsh v. Van Amringe

103 Misc. 350 | N.Y. Sup. Ct. | 1918

Platt, J.

Plaintiff brings an action for specific performance based on three memoranda of the sale.

Plaintiff’s Exhibit 2.

“ New York, Aug. 5th 1916.

“ Received from I. & A. G. Wright as Agents, fifty and no/100 Dollars, same being on acct. of purchase price of 5.19 acres on Tailors Lane as shown on map of Kirby & Son, Price $1500, balance to be paid in ‘30 days. Contract "to be drawn by seller.

“ Augustus Y. Van Amringe. $50.00. ’ ’

Plaintiff’s Exhibit 4.

“ This cheek is void unless receipt is signed by payee.

“I. & A. G. Wright

“ Real Estate and Insurance

“ White Plains, N. Y., Aug. 5th, 1916,

No. 8156.

“ Pay to the order of Augustus Y. Van Amringe $50.00 Fifty and no/100 dollars. To the County Trust Co. White Plains, N. Y.

“ I. & A. G. Wright.

“ Received of I. & A. G. Wright, Fifty and no/100 dollars in % purchase price of 5.19 acres.

“ Date Aug. 5th, 1916

“ Signature of Payee

“Augustus Y. Van Amringe,

Indorsed:

“ Augustus Y. Vah Amrihge “ Pay to the order of the

First Natl. Bank,

Mamaroneck, N. Y.

“ I Yah Amrihge & Son.”

Plaihtiee’s Exhibit 5.

“ It is hereby conceded, stipulated and agreed that on this day, Catherine M. Walsh tendered the sum of Fourteen hundred and Fifty Dollars ($1450) to Augustus Y. Yan Amringe and demanded of Mr. Yan Amringe a deed of a certain salt meadow on Taylor’s Lane in the Town of Bye, the map of which- was made by J. A. Kirby & Sons, dated November 1911, containing 5.190 acres. Mr. Yan Amringe, through his attorneys, stated that he is now compelled to decline the amount -so tendered and the request to execute and deliver such a deed. Mr. Yan Amringe does not concede that any contract exists whereby he may be called upon to execute or deliver such a deed.

“ Augustus Y. Yah Amrihge.”

“ Dated, September 5,1916.”

The defendant claims that these papers do not constitute a sufficient memorandum of the sale under section 259 of the Beal Property Law, in that they do not divulge the name of the purchaser. Exhibits 2 and 4, both dated and delivered at the same time, considered together show that the defendant received fifty dollars from I. & A. Gr. Wright, as agents, but do not state whom they were agents for. Exhibit 5 forms no part of the contract or memorandum thereof, but is a disavowal of the same by the defendant.

In Carney v. Pendleton, 139 App. Div. 152; Pettibone v. Moore, 75 Hun, 461, and Jones v. Barnes, 105 App. Div. 287, the names of the respective purchasers were given in the memoranda and sufficiently appeared in Fox v. Hawkins, 150 id. 801. In Lindenbaum v. Marx, 62 Misc. Rep. 310, the sole question decided was whether the deposit was made as part of the purchase price or given merely as security. In Langstroth v. Turner Cypress Lumber Co., 162 App. Div. 818, it was held that, when the writing discloses that one of the persons is avowedly acting as an agent for some one else, the memorandum must indicate the parties; and in Mentz v. Newwitter, 122 N. Y. 491, the court, quoting from Sir James Mansfield, Ch. J., said “‘ How can that be said to be a contract or memorandum of a contract which does not state who are the contracting parties. By the note, it does not appear to whom the goods were sold. It would prove a sale to any other person as well as the plaintiff.’ ”

Complaint dismissed, with costs.