Goodman v. De Roche

253 A.D. 834, 1 N.Y.S.2d 613, 1938 N.Y. App. Div. LEXIS 8837

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 21, 1938
• Status: Published

Opinion

Action for specific performance of a contract for the sale of a parcel of real property in Staten Island. Interlocutory judgment modified so as to provide that the official referee accept, as a base on which to make the computations directed, the fact that on October 8, 1926, there was a principal indebtedness of $2,300 owing by plaintiff to Julius De Roche, and that the amount to be paid by plaintiff be computed accordingly. As so modified, the interlocutory judgment is unanimously affirmed, with costs to appellant De Roche, payable by respondent, and with costs to respondent, payable by appellant Staten Island Savings Bank. The matter is remitted to an official referee to take further proof and make the proper computations. Final judgment directing specific performance on certain terms reversed on the law and the facts, without costs. Findings and conclusions inconsistent herewith are reversed. The proposed findings of defendant De Roche numbered 8, 9, 10 and 11 are found. The burden was upon the plaintiff to establish not only the terms of the contract relied upon, but the fact of payment of moneys due thereunder. In her proof there was a series of eleven receipts dated March 8, 1927, to April 9, 1932, for sixty-nine dollars each. All of these on their face were for payments of interest. These receipts, accepted in this form, established that on October 8,1926, there was a principal indebtedness of $2,300. The record discloses no credible evidence that establishes that these payments were for other than interest, and, therefore, these receipts establish a principal indebtedness of the amount indicated. Any finding to the contrary would be against the weight of evidence. The matter must, therefore, be remitted to an official referee for a computation of the amount due from the plaintiff, the payment of which amount shall be a condition precedent to plaintiff’s receiving a deed to the property under her action for specific performance. Defendant De Roche, having proposed that plaintiff have specific performance, may not be heard on appeal to challenge plaintiff’s right to such relief. So far as the appeal of defendant Staten Island Savings Bank is concerned, the interlocutory judgment is sustained by the evidence and the findings of the trial court. Hagarty, Carswell, Davis, Johnston and Taylor, JJ., concur. Settle order on notice.