204 Misc. 1079 | N.Y. Sup. Ct. | 1953
By lease dated October 22, 1949, the defendant Hazel M. Petersen through her attorney in fact, Eleo Zaremba, leased to the plaintiffs, William Whiteside and Robert Schneider, a gasoline station and garage located on the southeast corner of Jerusalem Avenue and Sawmill Road, North Bell-more, Nassau County, New York, for the term of five years, commencing November 1, 1949, and ending October 31, 1954, at a rental of $50 per month for the first year and $75 per month for the remaining four years of the term. This lease contained the following paragraph: ‘ ‘ 26th. That the tenant is hereby given first option to buy the within demised premises during the term of this lease for the sum of $9,000. ’ ’
This lawsuit revolves around the tenants ’ endeavor to acquire title to the property. It will be noted that this option is not an absolute option to purchase but merely one conditioned upon the owner’s willingness to sell. It is a “ first ” option to buy. Such an option is only a right of first refusal if the premises are offered for sale to another (R. I. Realty Co. v. Terrell, 254 N. Y. 121; Burbach v. Sinram, 237 N. Y. 600; London v. Joslovitz, 279 App. Div. 252).
The complaint does not show that there was any disposition on the part of the owner-landlord to sell to another and thus, under the language of paragraph “ 26th” of the lease, there would be no absolute right in the tenants to compel a conveyance. The complaint alleges, and the fact is, that the defendant through her attorney forwarded to the plaintiffs a formal contract of sale of the property. This contract, however, had the name of the landlord typed in at the usual place for the signature and beneath it was also typed the name of her attorney in fact, the same one who executed the lease in her behalf. This contract was never signed by the landlord nor by anyone in her behalf. However, it was signed by the tenants. It was dated February 23, 1952, and it provided, among other things, for a closing of title at the office of the defendant’s attorney on March 1, 1952.
Upon the strength of the option in the lease, taken alone, there is no right in the plaintiffs to compel a conveyance and the contract which was submitted in the exchange of letters passing between the attorneys for the parties was never signed by or in behalf of the landlord and so it is unenforcible under the Statute of Frauds (Real Property Law, § 259). If plaintiffs are to recover it must be upon a combination of two things: (1) the lease duly signed containing the option provision and (2) the submission of a contract by the owner-landlord’s lawyer indicating his client’s willingness to sell. The defendant’s
Even if it were held that the lease and the contract of sale constitute a memorandum within the requirements of the Statute of Frauds, the plaintiffs would be barred from relief. The defendant’s answer contains a defense that the plaintiffs are not the real parties in interest. By an assignment dated February 23, 1952, indorsed on the contract of sale the plaintiffs assigned all their rights under the contract to one Alfred Mion. The assignment reads: " For value received, the Avithin contract and all the rights, title and interest of the purchaser hereunder are hereby assigned, transferred and set over unto Alfred Mion and said assignee hereby assumes all obligations of the purchaser hereunder.” By that assignment, the plaintiffs here have ceased to be the real parties in interest. If the contract were valid and there were rights against the defendant under it, such rights would run to Mion and not to the plaintiffs. The
Judgment is granted in favor of the defendant, dismissing the plaintiffs’ complaint.
This memorandum constitutes the decision of the court pursuant to section 440 of the Civil Practice Act. Settle judgment on notice accordingly.