Dittenfass v. Horsley

Headnote

Dittenfass v. Horsley, 177 App. Div. 143 , affirmed.

Appeal from two orders of the Appellate Division of the Supreme Court in the first judicial department, entered February 23, 1917, reversing two orders of Special Term denying motions for judgment on the

pleadings and granting said motions. This action is brought to compel the specific performance of a contract, by the terms of which William Horsley agreed to sell to Lewis J. Selznick, 500 shares of the common and 500 ■ shares of the preferred - capital stock of the Universal Film Manufacturing Company. Plaintiff claimed the right to enforce the agreement by virtue of certain assignments. He alleged that Selznick duly assigned all his right, title and interest therein to one Burt, who duly assigned all his right, title and interest therein to plaintiff. The Appellate Division held: “ Not only is theré a failure to allege that the plaintiff assumed the-obligations of Selznick as between him, and his assignor, but the complaint contains no allegation with respect to any agreement between the plaintiff and William Horsley by which the former accepted or became bound to perform the obligations of Selznick, if any, under and by virtue of the agreement, and, therefore, Horsley could not have enforced the agreement against the plaintiff. It is now the well-settled law in this jurisdiction that a court of equity will not require specific performance of a unilateral contract against the party who has executed it at the instance of another party thereto who is not likewise obligated to perform.”