Davenport v. Gifford — 270 A.D. 1065

Majority

p. 1065

Frances L. Davenport, Respondent, v. Benedict Gifford, Appellant.

Appeal from an order denying a motion to dismiss a complaint under rule 106 of the Rules of Civil Practice. The action is brought upon a contract dated December 15, 1927; a copy is attached to the complaint. The parties were then man and wife, living separately. It appears that the plaintiff had loaned her husband $40,000 and also certain securities which he had pledged at a bank. He was the owner of a farm which he agreed to sell “ as soon as possible ” and pay the amount received, not to exceed $40,000, in satisfaction of his wife’s debt; also to redeem her securities “ as soon as he is able ”, The complaint alleges that the farm has not been sold, and that $1,000 of the securities have not been redeemed. A money judgment is asked for the two items, with interest. The language of the agreement

p. 1066

sustains the theory that the property was to he sold within a reasonable time. Eighteen years elapsed between the making of the contract and the bringing of the action. The most favorable view for the defendant would be that a question of fact is presented as to whether a reasonable time has elapsed. Probably the authorities would sustain a determination, as matter of law, that a reasonable time has elapsed (Simon v. Etgen, 213 N. Y. 589 ). Order affirmed, with $25 costs. Defendant is given leave to answer, if he is so advised, within twenty days after the service of a copy of the order with notice of entry, to be entered hereon. All concur.

Cases cited

Simon v. Etgen 213 N. Y. 589 N.Y. 1915-01-19 p. 1066