Kaiser v. Parker

Headnote

Kaiser v. Parker, 178 App. Div. 894 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 24, 1917, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term and directing judgment in favor of defendants upon the counterclaim set up in the answer. The action was brought to reform certain executory contracts for the purchase of real estate to conform to the alleged actual agreements made between

the parties. The counterclaim demanded specific performance of the contracts. The reply set up as separate-defenses: 1. That the written agreements on which the counterclaim was based were not the actual agreements, but that the actual agreements, stating their terms, were made by the parties prior to the alleged written agreements, and that in reducing the agreements to writing, the scrivener of the defendants, by mistake or inadvertence, failed to correctly set out the terms of the agreements as actually made. 2. That the defendants could not convey a good title to the lots in question, free from all incumbrances other than those excepted in the alleged agreements, for the reason that the premises are burdened with telephone poles, telegraph poles and trolley poles with their usual wires and connections, erected upon the highways adjacent to said lots.