Caren v. Liebovitz — 113 A.D. 674

Majority

p. 674

Nellie P. Caren, Respondent, v. Samuel Liebovitz, Appellant.

Second Department,

June 15, 1906.

Headnote

Vendor and purchaser—when enforcible contract to sell lands good . consideration for a check in part payment, although Vendor refused to execute new contract. < - ■

A defendant, who has given a check as part payment on a written contract for the conveyance of lands which was signed by the vendor but not by the vendee,! is liable on the pheck, although the vendor subsequently refused to „■ execute a second contract of sale" on the samé térras as the -first. This-is so because the first contract is still enforcible against the vendor under the Statute of. Frauds, and furnished' a'good consideration for the check.

p. 675

Appeal by the defendant, Samuel Liebovitz, from a judgment in favor of the plaintiff in an action in the Municipal Court of the city of Mew York.

The action was on a check for $200 given by the defendant to the plaintiff on the purchase price of a piece of real estate. The plaintiff agreed in writing to convey to the defendant’s brother the real estate, and the check was given at the same time. The writing satisfied all the requirements of the Statute of Frauds to bind the plaintiff (the seller), but was not signed by the buyer. It contained a provision for the making of a contract next day. The defendant sought to show as a defense which was pleaded that the plaintiff refused to sign a contract next day in accordance with the terms of the first contract, but insisted on putting therein a restricting covenant against specified occupations and against building contained in the conveyance to her. The trial judge excluded the said conveyance and. much of the evidence that would have gone to establish the facts constituting the said defense.'

Jacob R. Schiff, for the appellant.

Lynn C. Norris, for the respondent.

It is not necessary to inquire into the disputed question whether the covenants the plaintiff wanted to put in the second contract would have been incumbrances on the property. The refusal of the plaintiff to make the second contract the same in. its terms as the first did not defeat the consideration for the check. It was given for a good consideration, viz., the first contract, and that remains and can be enforced. The plaintiff is just as much bound by the contract as it was first drawn as she would be if it were drawn over and signed again., It satisfies the provisions of the Statute of Frauds, and is complete against her. That the purchaser has not signed it does not detract from its effect against her.

The judgment should be affirmed.

Hirschberg, P. J., Woodward and Rich, JJ., concurred. Miller, J., dissented on the ground that the plaintiff herself refused to perform the contract.

Judgment of the Municipal Court affirmed, with costs.