Markey v. Nirvana Holding Corp.

253 A.D. 766, 300 N.Y.S. 1181, 1937 N.Y. App. Div. LEXIS 5509

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1937
• Status: Published

Opinion

Action for specific performance of a claimed contract of sale of a parcel of real property in Wading River, Suffolk county. Order, in so far as it grants motion of The Nirvana Holding Corporation for summary judgment and denies motion of plaintiff for summary judgment, affirmed; in so far as it denies the motion of del Piatta for summary judgment, the order is reversed on the law and the motion granted. One bill of cost to defendants The Nirvana Holding Corporation and del Piatta, and ten dollars motion costs to defendant del Piatta. The letter of September 28, 1936, together with plaintiff’s letter of September 29, 1936, which plaintiff deems a contract of sale, does not comply with the Statute of Frauds. Assuming the letter of September 28, 1936, is adequate in all other respects, the letter of plaintiff of September 29, 1936, is not an unqualified acceptance of the proposal contained in the letter of September 28, 1936. It is plainly equivocal and afforded plaintiff the opportunity, if he saw fit, to assert that he was not bound. Hagarty, Carswell, Johnston and Adel, JJ., concur; Davis, J., dissents from the affirmance of the order with respect to defendant The Nirvana Holding Corporation and votes to reverse as to it and to deny its motion, on the ground that the correspondence constituted a contract; but concurs in all other respects. There are issues of fact to be tried.