F & L Realty Corp. v. Goodrich

Appellate Division of the Supreme Court of New York

F & L Realty Corp. v. Goodrich

7 A.D.2d 974, 184 N.Y.S.2d 49, 1959 N.Y. App. Div. LEXIS 9551

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

DecidedMarch 17, 1959

StatusPublished

Cited by1 cases

This text of 7 A.D.2d 974 (F & L Realty Corp. v. Goodrich) 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.

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F & L Realty Corp. v. Goodrich, 7 A.D.2d 974, 184 N.Y.S.2d 49, 1959 N.Y. App. Div. LEXIS 9551 (N.Y. Ct. App. 1959).

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Opinion

Order unanimously reversed, on the the law, with $20 costs and disbursements to the appellants, and the motion for summary judgment dismissing the complaint granted, with $10 costs. Upon this motion the plaintiffs were required to show that the extension of the lease or the agreement to do so was in writing (Real Property Law, §§ 242, 259) or submit proof by affidavit that there had been acts of part performance sufficient to relieve them from the production of such a writing. (McKinley v. Hessen, 202 N. Y. 24, 30.) There has been a complete failure to meet either of these requirements. The claimed acts of part performance are legally insufficient to raise a triable issue of fact. The rule is “that the part performance must be clearly evidential of the existence of a contract — it must be such as would not ordinarily have taken place in the absence of a contract and therefore is not reasonably explicable on some other ground.” (2 Corbin, Contracts, § 430, p. 473.) Otherwise stated, “ There must be performance ‘ unequivocally referable ’ to the agreement, performance which alone and without the aid of words of promise is unintelligible or at least extraordinary unless as an incident of ownership, assured, if not existing.” (Burns V. McCormick, 233 N. Y. 230, 232.) The acts claimed by plaintiffs to have constituted part performance, fall far short of compliance with this rule. Settle order on notice. Concur—Botein, P. J., Breitel, McNally and Bastow, JJ.

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Order unanimously reversed, on the the law, with $20 costs and disbursements to the appellants, and the motion for summary judgment dismissing the complaint granted, with $10 costs. Upon this motion the plaintiffs were required to show that the extension of the lease or the agreement to do so was in writing (Real Property Law, §§ 242, 259) or submit proof by affidavit that there had been acts of part performance sufficient to relieve them from the production of such a writing. (McKinley v. Hessen, 202 N. Y. 24, 30.) There has been a complete failure to meet either of these requirements. The claimed acts of part performance are legally insufficient to raise a triable issue of fact. The rule is “that the part performance must be clearly evidential of the existence of a contract — it must be such as would not ordinarily have taken place in the absence of a contract and therefore is not reasonably explicable on some other ground.” (2 Corbin, Contracts, § 430, p. 473.) Otherwise stated, “ There must be performance ‘ unequivocally referable ’ to the agreement, performance which alone and without the aid of words of promise is unintelligible or at least extraordinary unless as an incident of ownership, assured, if not existing.” (Burns V. McCormick, 233 N. Y. 230, 232.) The acts claimed by plaintiffs to have constituted part performance, fall far short of compliance with this rule. Settle order on notice. Concur—Botein, P. J., Breitel, McNally and Bastow, JJ.

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7 A.D.2d 974, 184 N.Y.S.2d 49, 1959 N.Y. App. Div. LEXIS 9551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/f-l-realty-corp-v-goodrich-nyappdiv-1959.

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