Hirsch v. Fasalino

270 A.D. 826, 60 N.Y.S.2d 45, 1946 N.Y. App. Div. LEXIS 4128

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 25, 1946
• Status: Published

Opinion

Action to compel specific performance of an oral agreement to execute and deliver a bond and mortgage upon real estate. The answer pleads the Statute of Frauds as a defense. Order denying motion of defendant Gerofsky to dismiss the complaint, pursuant to rule 112 of the Rules of Civil Practice, reversed on the law, with $10 costs and disbursements, and the motion granted, with $10 costs. The plaintiff's alleged failure to take steps to prosecute his action for fraud or to prevent defendant Fasalino from leaving the jurisdiction is insufficient to constitute part performance so as to take the case out of the Statute of Frauds. Such inaction is completely ambiguous and the pleadings contain nothing by which it might be deemed referable to an interest in real estate, except by reason of the alleged oral promise. Lewis, P. J., Hagarty, Carswell, Johnston and Nolan, JJ., concur.