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Hahn v. Brettler

98 N.Y.S. 607 Court N.Y. App. Term Decision date 1906-04-24 English

Judges Argued before SCOTT, P. J., and TRUAX and BISCHOFF, JJ.; All concur.

Delivered by BISCHOFF, J.

Contents

Majority

p. 607
(50 Misc. Rep. 647)
HAHN et al. v. BRETTLER et al.
(Supreme Court, Appellate Term.
April 24, 1906.)

Headnote

Frauds, Statute or — Sate of Interest in Reai.tt.
The sale of an interest in a contract for the sale of land is not within the statute of frauds, and need not be in writing.
[Ed. Note. — For cases in point, see vol. 23, Cent. Dig. Frauds, Statute of, § 123.]
p. 608
Appeal from City Court of New York, Special Term.
Action by David Hahn and others against Max Brettler and others. From an order setting aside a verdict for the plaintiff and dismissing the complaint on the merits, and from the judgment entered thereon, plaintiffs appeal.
Reversed, and remanded for entry of judgment on the verdict.
Argued before SCOTT, P. J., and TRUAX and BISCHOFF, JJ.
Joseph Fischer, for appellants.
Sternberg & Jacobson, for respondents.

The plaintiffs as vendees and the defendants as vendors entered into a contract for the sale of the defendants’ real estate. Thereafter the defendants proposed a sale to them of the plaintiffs’ interest in the contract for the sum of $1,600. The plaintiffs accepted the offer, and a payment of $50 was made by the defenda’nrs on account. The plaintiffs being ready and willing to carry out the agreement, and the defendants having refused to pay, this action was brought to recover the balance of the agreed sum, and, after verdict for the plaintiffs, the court entertained a motion to set aside the verdict, granted the motion, and directed a dismissal of the complaint. The ground of the decision was that the agreement in suit, for the purchase of the vendee’s interest in a contract for the sale of lands, was an agreement involving the transfer of plaintiffs’ interest in real estate; hence, not being evidenced by a writing signed by the plaintiffs, was void under the statute of frauds, and afforded no consideration for the defendants’ promise, upon which the action is founded. In the case of Fleischman v. Plock, 19 Misc. Rep. 649 , 44 N. Y. Supp. 413 , the question now before us was considered by this court, and the conclusion was reached that the statute of frauds was not available under these circumstances to defeat an action founded upon the defendants’ promise.

The judgment and order appealed from must therefore be reversed, and the cause remitted to the court below for entry of judgment upon the verdict, with costs to the appellants.

All concur.

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