Lye v. Obermeyer

Appellate Division of the Supreme Court of New York

Lye v. Obermeyer

172 A.D. 883, 156 N.Y.S. 1059

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

DecidedDecember 15, 1915

StatusPublished

This text of 172 A.D. 883 (Lye v. Obermeyer) 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

Lye v. Obermeyer, 172 A.D. 883, 156 N.Y.S. 1059 (N.Y. Ct. App. 1915).

Pincite

Opinion

Per Ctjriam:

Obermeyer & Liebmann disavow any obligations on account of the contract between Doremus and the plaintiff. They are, therefore, not in a position to enforce specific performance, although they may submit to the direction of the court in that regard. Doremus, although a party to the action, has never offered to perform, nor does he ask for specific performance, although in open court he seems to have consented to it. He is overpaid by $125, through misrepresentation or mis[884]*884understanding as to the amount of the mortgage. Therefore, the plaintiff should not be obliged to perform against her will. There is no judgment or finding as to the cause of action sought to be alleged in the complaint against Obermeyer & Liebmann, but the record shows that no cause of action has been proven. The judgment should be amended so as to provide for the dismissal, on the merits, of the complaint against Obermeyer & Liebmann. The judgment so far as it directs specific performance should be reversed, without costs, unless plaintiff shall, within twenty days after entry of the order of this court, serve on defendants’ attorneys notice whether she accepts specific performance as provided by the judgment. In case of such election, the judgment, amended as above, is affirmed, without costs. Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ., concurred. Judgment amended so as to provide for the dismissal, on the merits, of the complaint against Obermeyer & Liebmann. The judgment so far as it directs specific performance reversed, without costs, unless plaintiff shall, within twenty dkys after entry of the order of this court, serve on defendants’ attorneys notice whether she accepts specific performance as provided by the judgment. In case of such election the judgment, amended as above, is affirmed, without costs. Order to be settled before Mr. Justice Thomas.

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Per Ctjriam:

Obermeyer & Liebmann disavow any obligations on account of the contract between Doremus and the plaintiff. They are, therefore, not in a position to enforce specific performance, although they may submit to the direction of the court in that regard. Doremus, although a party to the action, has never offered to perform, nor does he ask for specific performance, although in open court he seems to have consented to it. He is overpaid by $125, through misrepresentation or mis[884]*884understanding as to the amount of the mortgage. Therefore, the plaintiff should not be obliged to perform against her will. There is no judgment or finding as to the cause of action sought to be alleged in the complaint against Obermeyer & Liebmann, but the record shows that no cause of action has been proven. The judgment should be amended so as to provide for the dismissal, on the merits, of the complaint against Obermeyer & Liebmann. The judgment so far as it directs specific performance should be reversed, without costs, unless plaintiff shall, within twenty days after entry of the order of this court, serve on defendants’ attorneys notice whether she accepts specific performance as provided by the judgment. In case of such election, the judgment, amended as above, is affirmed, without costs. Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ., concurred. Judgment amended so as to provide for the dismissal, on the merits, of the complaint against Obermeyer & Liebmann. The judgment so far as it directs specific performance reversed, without costs, unless plaintiff shall, within twenty dkys after entry of the order of this court, serve on defendants’ attorneys notice whether she accepts specific performance as provided by the judgment. In case of such election the judgment, amended as above, is affirmed, without costs. Order to be settled before Mr. Justice Thomas.

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Bluebook (online)

172 A.D. 883, 156 N.Y.S. 1059, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lye-v-obermeyer-nyappdiv-1915.