Dempsey v. O'Rourke

Headnote

Dempsey v. O'Rourke, 172 App. Div. 969 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 10, 1915, affirming a judgment in favor of defendants, respondents, entered upon a decision of the court on trial at Special Term in an action to compel specific performance of a contract for the sale of real property. The judgment at Special Term declared that a certain written contract for the sale of real estate, dated August 20, 1913, between the plaintiff as vendee and Sarah Ridgway O’Rourke, the defendants’ intestate, as vendor, was in all respects fraudulent and void, directed the same to- be vacated, canceled and set aside and to be delivered up to the defendant’s heirs for cancellation; and also declared that the deed dated August 26, 1913, made by the said Sarah Ridgway O’Rourke to the plaintiff, pursuant to the said contract, was never delivered and was in all respects fraudulent and void, directed the said deed to be canceled, vacated and set aside and to be delivered up to the defendant’s heirs for cancellation.

The judgment further directed the dismissal upon the merits both of the complaint of the plaintiff, which was for the specific performance of the said written contract and for damages for its breach, as well as of the defendant administrator O’Rourke’s prayer for an affirmative judgment, that by reason of the death of the vendor before the consummation of the contract, he be awarded the proceeds of such contract, or if specific performance be refused to the plaintiff that a trust be impressed on the said real estate in his favor to the extent of the consideration mentioned in the contract.