Cherey v. McLaughlin

Headnote

Contract — sale — specific performance — delivery of check of third person as down payment — dishonor of check and notice of rescission — check delivered as conditional, not as absolute payment.

Cherey v. McLaughlin, 219 App. Div. 728 , reversed.

Appeal from a judgment, entered February 14, 1927 upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of defendant entered upon a decision of the court on trial at Special Term and directing judgment in favor of plaintiff. The action was to compel specific performance of a contract for the sale of real property. The defense was that the contract provided for a down payment; that the check of a third party given by plaintiffs for the amount thereof and represented by them to be good was dishonored; that no part thereof had been paid and that defendant had notified plaintiff • of the rescission of said contract. The Appellate Division held that “ the acceptance of the check was payment to defendant, the evidence failing to show fraud or false representations in the giving of it.”