Colyer v. Williams — 15 N.Y.S. 967

Majority

p. 967

Colyer, Appellant, v. Williams et al., Respondents.

(Supreme Court, General Term, Second Department.

July 2, 1891.)

Headnote

Appeal from special term, Kings county.

Action by Joseph Colyer against Mary Louise Williams and others.

Argued before Barnard, P. J., and Dykman, J.

Samuel P. Potter, for appellant. Carpenter & Roderick, for respondents. William Kenny and Samuel Cohn, for respondents Mary Louise Williams and others.

This action was commenced to compel the specific performance of a contract for the sale of land to the plaintiff by Mary Louisa Bragaw and John Bragaw, her husband. The title to the land was in the wife, and she is dead, and the trustee under her last will and testament, arid the other defendants who answered, set up the incompetency of Mary L. Bragaw to attend to business, or understand or comprehend the purport and meaning or effect, character, or contents of the contract upon which the action is based. The trial judge found all the facts set up by way of defense substantially as they were alleged, and dismissed the plaintiff’s complaint. The testimony fully sustains the findings, and all the facts and circumstances surrounding the transaction show plainly that it is not a case where a court of equity will decree a specific performance of the contract. The exception to the exclusion of testimony is not well founded, and the record discloses no error. The judgment should be affirmed, with costs.