34 Misc. 2d 597 | N.Y. Sup. Ct. | 1962
In this action for specific performance plaintiff, the proposed purchaser of an apartment building, seeks to enforce the terms of a written binder agreement exe
After providing for a $500 deposit, the agreement recited the purchase price of $165,000, $3,000 cash to be paid on the signing of a formal contract, balance unpaid on two mortgages subject to which purchaser was to take title, with details as to'amortization and interest payments, including the due date of each. There followed a statement of the amount of a third purchase-money mortgage required to make "up the purchase price, which purchaser undertook to execute on closing with a provision for payment of interest thereon until 1970, the principal to be prepayable in April 1965, or prior thereto. The amount of cash on closing to make up the total purchase price of $165,000, was fixed at $37,000.
Provision was made for a formal contract on the form used by the Title Guarantee and Trust Co., to be executed on a date specified, and closing was to be held at the office of sellers’ attorney on June 1, 1961. The customary references to rights of tenants and mutual representation of no brokerage, likewise were included.
After receiving plaintiff’s $500 check' as a deposit, defendants returned it a few days later with a letter advising plaintiff that defendants had decided not to sell the property. The writing upon which the action is predicated contains every essential of a binding contract. In De Goode v. Burton (141 App. Div. 22, 25) the essential elements of a valid contract to sell real property was thus stated: “ The rule is Avell established that a note or memorandum sufficient to take a contract of sale out of the operation of the Statute of Frauds must state the whole contract with reasonable certainty so that the substance thereof may be made to appear from the record itself without recourse to parol evidence.”
In Pelletreau v. Brennan (113 App. Div. 806), cited, also, in Fusco v. Coffey (48 N. Y. S. 2d 740) and in Matter of Degenkolb (113 N. Y. S. 2d 880) instruments similar to the binder agreement in question, were held to be sufficient to bind the seller.
Judgment will accordingly be granted to the plaintiff for the relief demanded in the complaint. This constitutes the decision of the court pursuant to section 440 of the Civil Practice Act,