Balkum v. Marino

Appellate Division of the Supreme Court of New York

Balkum v. Marino

274 A.D. 903, 83 N.Y.S.2d 260, 1948 N.Y. App. Div. LEXIS 3979

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 25, 1948

StatusPublished

Cited by1 cases

This text of 274 A.D. 903 (Balkum v. Marino) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Balkum v. Marino, 274 A.D. 903, 83 N.Y.S.2d 260, 1948 N.Y. App. Div. LEXIS 3979 (N.Y. Ct. App. 1948).

Pincite

Opinion

In an action for specific performance of a written contract for the purchase and sale of real property, order striking out defenses pleaded in appellant’s amended answer, pursuant to rule 104 of the Rules of Civil Practice, and granting judgment in favor of respondent, pursuant to rule 112 of the Rules of Civil Practice, and judgment (one paper) in favor of respondent, reversed on the law, with $10 costs and disbursements, respondent’s motion denied, with $10 costs, and the complaint dismissed on the law. The complaint does not state a cause of action. The agreement therein pleaded is vague, indefinite and incomplete, and may not be enforced. (Ansorge v. Kane, 244 N. Y. 395; Keystone Hardware Corp. v. Tague, 246 N. Y. 79; St. Regis Paper Co. v. Hubbs & Hastings Paper Co., 235 N. Y. 30.) We may not construe the contract as one to pay the full purchase price in cash, since it provides for the giving of a purchase-money mortgage. If it may be read as providing for the payment of the full amount of the purchase price in cash, if respondent should be able to obtain a “ G.I.” mortgage, and if not, at respondent’s option, by payment of part cash and the balance by the execution and delivery of a purchase-money mortgage, we may not ignore the provision of the contract which contemplates payment of such mortgage in installments, and its duration for a term to expire on a definite date in the future. The parties did not agree as to those essential elements of their contract, which apparently were left for future negotiation if a “G. I.” mortgage could not be obtained. (Cf. Spielvogel v. Veit, 197 App. Div. 804.) Moreover, judgment on the pleadings should not have been granted in view of the denials of the allegations contained in paragraphs “ 5 ” and “ 7 ” of the complaint, nor should the motion to strike out the defenses have been granted. In our opinion the defenses pleaded were sufficient to withstand a motion made on the pleadings alone. The contract alleged in the complaint is not so clearly expressed as to preclude inquiry as to the intent of the parties, nor is the inference of finality from the writing alone so certain as to bar all inquiry in respect to their purpose. (Cf. Saltzman v. Barson, 239 N. Y. 332; Grannis v. Stevens, 216 N. Y. 583.) Carswell, Acting P. J., Adel, Nolan, Sneed and Wenzel, JJ., concur.

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In an action for specific performance of a written contract for the purchase and sale of real property, order striking out defenses pleaded in appellant’s amended answer, pursuant to rule 104 of the Rules of Civil Practice, and granting judgment in favor of respondent, pursuant to rule 112 of the Rules of Civil Practice, and judgment (one paper) in favor of respondent, reversed on the law, with $10 costs and disbursements, respondent’s motion denied, with $10 costs, and the complaint dismissed on the law. The complaint does not state a cause of action. The agreement therein pleaded is vague, indefinite and incomplete, and may not be enforced. (Ansorge v. Kane, 244 N. Y. 395; Keystone Hardware Corp. v. Tague, 246 N. Y. 79; St. Regis Paper Co. v. Hubbs & Hastings Paper Co., 235 N. Y. 30.) We may not construe the contract as one to pay the full purchase price in cash, since it provides for the giving of a purchase-money mortgage. If it may be read as providing for the payment of the full amount of the purchase price in cash, if respondent should be able to obtain a “ G.I.” mortgage, and if not, at respondent’s option, by payment of part cash and the balance by the execution and delivery of a purchase-money mortgage, we may not ignore the provision of the contract which contemplates payment of such mortgage in installments, and its duration for a term to expire on a definite date in the future. The parties did not agree as to those essential elements of their contract, which apparently were left for future negotiation if a “G. I.” mortgage could not be obtained. (Cf. Spielvogel v. Veit, 197 App. Div. 804.) Moreover, judgment on the pleadings should not have been granted in view of the denials of the allegations contained in paragraphs “ 5 ” and “ 7 ” of the complaint, nor should the motion to strike out the defenses have been granted. In our opinion the defenses pleaded were sufficient to withstand a motion made on the pleadings alone. The contract alleged in the complaint is not so clearly expressed as to preclude inquiry as to the intent of the parties, nor is the inference of finality from the writing alone so certain as to bar all inquiry in respect to their purpose. (Cf. Saltzman v. Barson, 239 N. Y. 332; Grannis v. Stevens, 216 N. Y. 583.) Carswell, Acting P. J., Adel, Nolan, Sneed and Wenzel, JJ., concur.

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Bluebook (online)

274 A.D. 903, 83 N.Y.S.2d 260, 1948 N.Y. App. Div. LEXIS 3979, Counsel Stack Legal Research, https://law.counselstack.com/opinion/balkum-v-marino-nyappdiv-1948.

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