Van Der Bent v. Gilling

Headnote

Van Der Bent v. Gilling, 164 App. Div. 920 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered November 13, 1914, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to compel specific performance of the following agreement:

“Shokan, September Ath, 1912.

“For the sum of twelve hundred dollars received I, Emily Wilhelmina Hilling, hereby sell to Teunis J. vanderBent 40 acres of my property, including the woods and pond on the northwest side of my property, further to be described in proper form, when of the sum received I have paid the mortgage and interest owing to Alvah Bogart and I legally can dispose of this property by sale. And until this transfer of property has been legally made I undersign this document as proof of having received the full sum of twelve hundred dollars. In case any difficulty in title or otherwise may arise which would make this transfer of property impossible, I agree to return and pay back this amount on September 14th, 1913, with interest at 6 per cent per annum.

“EMILY W. HILLING.

“ In presence of

“A. Van der Hook.”

The defense was that the writing did not constitute a contract subject to specific performance owing to insufficiency of the description.