Beattie v. Burt

122 A.D. 473, 107 N.Y.S. 153, 1907 N.Y. App. Div. LEXIS 2478

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 29, 1907
• Status: Published

Opinions

Gaynor, J. :

This is a suit by the purchaser for specific performance of a contract to sell real estate. The complaint alleges that the defendants are man and wife, and that they are the owners in fee oí the land in question, but whether by the entireties or as tenants in common is not alleged. The answer dqes not deny this allegation. The complaint alleges that the defendants' made a written contract of sale of the land to the plaintiff, and that they refuse to perform. The allegation of the contract is denied by the answer., The contract when put in evidence .proved,to be by one Do'nnockef to sell the land to the plaintiff. It does not mention the defendants or purport to bind them. The plaintiff introduced. oral evidence, however, tending’to show, that the husband authorized Donnocker to sell the laud as broker. There was no evidence that the wife gave him any authority. At the' close of the plaintiff’s evidence the court.therefore dismissed, the complaint as to the wife on her motion. It then'dismissed the complaint as to the husband on his motion. This vras not error. ' The complaint was. for the specific performance of á contract by tlie husband and the wife to convey the land, aiid.there was a failure off-proof of such a contract. The-contract proved was that of the husband alone to convey the land. It was impossible for him to., convey it; he could only convey his' undivided share; and the rule in a case of inability to pérform is that specific performance will .not be decreed (Pomeroy on Specific Performance, sec. 293)

As no point is-made of -the failure Of the learned trial judge to make findings of fact that question of practice need not be considered. ' '

The judgment should he affirmed.'

Jenks, Rich and Miller, JJ., concurred; Hooker, J., read foi; reversal. ■ .