Carpiniello v. Protano

Appellate Division of the Supreme Court of New York

Carpiniello v. Protano

32 A.D.2d 786, 302 N.Y.S.2d 244, 1969 N.Y. App. Div. LEXIS 3791

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

DecidedJune 9, 1969

StatusPublished

This text of 32 A.D.2d 786 (Carpiniello v. Protano) 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

Carpiniello v. Protano, 32 A.D.2d 786, 302 N.Y.S.2d 244, 1969 N.Y. App. Div. LEXIS 3791 (N.Y. Ct. App. 1969).

Pincite

Opinion

In an action for specific performance of a contract for the sale of real property, defendants appeal from a judgment of the Supreme Court, Westchester County, dated October 1, 1968, in favor of plaintiff. Judgment affirmed, with costs; and action remanded to the trial court for the purpose of fixing a new time and place for the closing of title. We have not reached nor do we decide the question whether the attempted oral modification of the contract of sale was valid and enforceable. We agree with the trial court that under the circumstances plaintiff was entitled to. a reasonable adjournment in order to procure cash or a mortgage. Defendants cannot be permitted to prevent plaintiff’s performance of the original contract by agreeing to its oral modification and, thereafter, insisting upon strict adherence to the original contract, setting up the Statute of Frauds to bar enforcement of the altered contract (cf. Harris v. Shorall, 230 N. Y. 343, 349; Imperator Realty Co. v. Tull, 228 N. Y. 447, 453). Equity will intervene in such a case to protect the purchaser. Beldock, P. J., Brennan, Benjamin, Munder and Martuscello, JJ., concur.

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In an action for specific performance of a contract for the sale of real property, defendants appeal from a judgment of the Supreme Court, Westchester County, dated October 1, 1968, in favor of plaintiff. Judgment affirmed, with costs; and action remanded to the trial court for the purpose of fixing a new time and place for the closing of title. We have not reached nor do we decide the question whether the attempted oral modification of the contract of sale was valid and enforceable. We agree with the trial court that under the circumstances plaintiff was entitled to. a reasonable adjournment in order to procure cash or a mortgage. Defendants cannot be permitted to prevent plaintiff’s performance of the original contract by agreeing to its oral modification and, thereafter, insisting upon strict adherence to the original contract, setting up the Statute of Frauds to bar enforcement of the altered contract (cf. Harris v. Shorall, 230 N. Y. 343, 349; Imperator Realty Co. v. Tull, 228 N. Y. 447, 453). Equity will intervene in such a case to protect the purchaser. Beldock, P. J., Brennan, Benjamin, Munder and Martuscello, JJ., concur.

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Bluebook (online)

32 A.D.2d 786, 302 N.Y.S.2d 244, 1969 N.Y. App. Div. LEXIS 3791, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carpiniello-v-protano-nyappdiv-1969.

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