Levin v. Dietz — 48 Misc. 593

Majority

p. 593

Louis Levin et al., Plaintiffs, v. James E. Dietz, Defendant.

(Supreme Court, Kings Special Term for Trials,

December, 1905.)

Headnote

Frauds, Statute of — Real Property — Requisites and sufficiency of writing — Separate writings.

Where a writing on the back of a card, signed by the owner of real estate, describing two plots of land and inviting an offer of $17,000 for them, is given to the broker negotiating the sale, and a letter from the owner to the intending purchaser mentions no property but fixes a time and place at which he will deliver his deed on the payment of $16,500, together with a simultaneous letter to the broker which also fixes the same time and place for the delivery of the deed, and specifies the “plots at Pitkin Ave.” as the land to be conveyed, and, while not mentioning the price, notifies the broker that the writer had written the letter to the intending purchaser, the three writings taken together satisfy the requirement of the Statute of Frauds (Real Property Law, § 224) that “the contract, or some note or memorandum thereof, expressing the consideration ” be in writing and subscribed by the grantor; and the purchaser is entitled to specific performance.

Suit to compel specific performance of an alleged written contract to convey two lots in the city of Hew York, borough of Brooklyn: the first described as at the northwest corner of Bristol street and Pitkin avenue, 90 feet on the former and 100 on the latter, and forming a rectangle, and the second described as at the southwest corner of Pitkin avenue

p. 594

and Bristol street, 100 feet on the former and 92 ft. 11 in. on the latter, and forming a rectangle.

There was no formal written contract, but the plaintiffs depended on the following writings:

1. An undated writing, on the back of the defendant’s business card, in the handwriting of the defendant, addressed to nobody, as follows: “ Nine thousand dollars. But would consider $17,000, for both plots N. W. and S. W. corners Pitkin avenue and Bristol street, 100 x 90—100 x 92.11. Very respectfully, James E. Dietz.” The lots here referred to correspond in description to those alleged in the complaint.

2. A letter from defendant to Dakin, the broker who was trying to sell the land, dated September 27, 1903, as follows: “Dear Sir: Anything less than $16,500 will not be considered by yours truly, James E. Dietz.”

3. On December 1, a diagram of the lots described in the complaint was put on the back of the said last letter by the said broker; and, at the same time, the following was written there by him: “New York, Dec. 1, 1902, James E. Dietz agreed to sell the two corner lots as per diagram to Louis Levin for $16,500, agreement to be made Saturday, December 5, 1903, at office of said Levin, 1782 Pitkin avenue, Brooklyn, N. Y., property absolutely sold to said Levin for price above mentioned.” Levin is one of the plaintiffs.

4. Letter of defendant to plaintiffs as follows: “ New York, Dec. 3, 1903. Dear Sirs: I will mail deeds of property to office of Jackson & Dembeck who will be -ready to complete the deal at 3 P. M. Saturday. Have the money $16,500 with you then and Mess. Jackson & Dembeck will turn the property over to you. Respectfully yours, James E. Dietz.”

. 5: Letter of the same date of defendant to the said broker as follows: “New York, Dec. 3, 1903. Dear Sir: I have written to the intending purchasers of plots at Pitkin Ave, also will mail deeds of same to office of Jackson & Dembeck who will close the deal at 3 p. m. Saturday at 6 Belmont Ave. you may notify them to have the money ready at the appointed time and place when Mr. Jackson will turn the property over. Very respectfully yours, Jas. E. Dietz.”

p. 595

All these writings, except the letter to the plaintiffs, were handed to the plaintiffs’ attorney by Dakiit, on December 5, at the said time and place fixed' for closing.

The defendant did not appear at the place of closing, nor send any deed.

Walter L. Durack, for plaintiffs.

Headley M. Greene, for defendant.

A former judgment for the plaintiffs was reversed on appeal ( 106 App. Div. 208 ). The trial court had found that there was an oral contract of sale, but no written contract, but gave judgment of specific performance, nevertheless, on the ground that the Statute of Frauds had not been pleaded. This grew out of the mistaken rule of pleading now established in this state that the Statute of Frauds has to be pleaded, whereas it established a rule of evidence only, and not a rule of pleading. On appeal it was decided that the statute did not need to be pleaded, for the reason that the complaint alleges a written contract which the answer denies.

But the writings which it was claimed constituted the written contract were all in evidence, as the appeal record shows; and if they, taken together, made out a written contract in the opinion of the appeal court, it is not easy to believe that it would have reversed the judgment; for there is no rage on appeal to upset judgments, and nothing is better known among us than that a finding of fact will be and often is supplied on appeal on written evidence, or uncontradieted oral evidence, to affirm a judgment. But, notwithstanding this logical conclusion to be drawn from the reversal, the opinion written on appeal seems to say that the question whether the writings constitute a contract is left open, and I may therefore with propriety so consider it, which I otherwise could not do.

The writing on the back of the card, signed by the defendant and given to the broker who was negotiating the sale,

p. 596

•describes the two plots of land described in the complaint, and invites an offer of $17,000 for them. The defendant’s letter of December 3 to the plaintiffs mentions no property, but fixes a time and place when he will deliver them his deed •on payment of $16,500. His simultaneous letter to the said broker also fixes the same time and place for the delivery of his deed, and specifies the “ plots at Pitkin avenue ” as the land to be conveyed, but does not mention the price. It notifies the broker that the defendant had written the letter to the plaintiff, thus connecting the two letters.

These three writings taken together satisfy the requirement of the Statute of Frauds, viz., section 224 of the Real Property Law, that “ the contract, or some note or memorandum thereof, expressing the consideration ”, be in writing and subscribed by the grantor.

They show the grantor, the grantee and the price, and identify the land, which is the test of sufficiency.

The letter of December 3 to the broker only describes the land in general terms as the “plots at Pitkin ave.,” it is true, but the prior writing given to the broker locates them precisely on the said avenue. This made it unnecessary for the plaintiffs to prove de hors that the defendant owned no other land on Pitkin avenue except that described in the complaint, in order to show that the writings enable the land to be identified and described with certainty. The parties were dealing in the city of New York, and the legal inference ia that the writings refer to land there.

Judgment for the plaintiffs.