Kellner v. Kener — 234 N.Y. 521

Majority

p. 521

John S. Kellner, Appellant, v. Edward Kener, Jr., Respondent.

Headnote

Contract — specific performance — when oral agreement for sale of stock void under Statute of Frauds.

Kellner v. Kener, 190 App. Div. 927 , affirmed.

(Argued June 9, 1922;

decided July 12, 1922.)

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 11, 1919, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at an Equity Term. This action was brought for specific performance of an alleged oral contract claimed to have been entered into by the plaintiff and the defendant and one Edward Breitweiser and one Charles F. Bricka, demanding judgment compelling the defendant to deliver to the plaintiff certain stock of the Buffalo Co-operative Stove Company, purchased by the defendant since January 1, 1910, which it is claimed that the plaintiff has the right to purchase by reason of the alleged oral agreement. The complaint was dismissed upon the ground that the alleged contract was void under the Statute of Frauds.

Simon Fleischmann, Worthy B. Paul and Edward C. Schlenker for appellant.

p. 522

Richard H. Templeton and Wilber E. Houpt for respondent.

Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ.