Hallmark Construction Corp. v. Kemmerer

55 A.D.2d 637, 390 N.Y.S.2d 171, 1976 N.Y. App. Div. LEXIS 15381

Opinion

In an action, inter alia, for specific performance of a certain agreement pertaining to real property, plaintiff appeals from a judgment of the Supreme Court, Dutchess County, entered December 22, 1975, which, after a nonjury trial, is in favor of defendant and against it. Judgment affirmed, with costs. Special Term properly concluded that the "Deposit Agreement”, or binder, relied upon by plaintiff, did not satisfy the Statute of Frauds because it was incomplete and essential terms were left open for further negotiation. The evidence at the trial indicated that (1) the instrument did not provide the details of payment or the proposed terms of a purchase-money mortgage, (2) the agreement was silent as to whether portions of the premises were to be released from the lien of the purchase-money mortgage and, if so, under what terms and conditions, and (3) the description of defendant’s property was indefinite because of ambiguity as to (a) the amount of property defendant was to retain, (b) whether a three-car garage was included in the sale, (c) how access to the existing house was to be had from the street and (d) the size of the front, rear and side yards of said house. Hopkins, Acting P. J., Damiani, Rabin, Shapiro and Titone, JJ., concur.