Paragon Land Corp. v. County of Nassau

269 A.D. 676, 53 N.Y.S.2d 398, 1945 N.Y. App. Div. LEXIS 3213

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 1945
• Status: Published

Opinion

Orders granting defendants’ motions for summary judgment dismissing the complaint herein, which alleged causes of action for money had and received and conversion, and the judgment entered thereon, unanimously affirmed, with ten dollars costs and disbursements. The affidavits negative beyond question the allegations of the complaint that the sum of $15,000 sought to be recovered was delivered in escrow upon an agreement and condition not embodied in the court-approved contract of March 18, 1940 (or in the stipulation annexed thereto). (Levine v. Behn, 282 N. Y. 120.) The parties to the contract must be deemed to have known that the contract could not have been modified without court approval. The contract itself, signed by the appellant, evidences the fact that appellant paid and the trustees received the sum now sued for, upon the signing of the contract. Under the stipulation annexed to the contract, the trustees alone were entitled to a refund of the sum to be placed in escrow by them. Only the trustees, therefore, could have established rights, such as were asserted here by the plaintiff, to the return of that sum. Moreover, plaintiff, under its own allegations, might recover only on its failure to receive legal title. It has already been determined that such failure was due to its default. (Matter of Bond & Mortgage Guarantee Co., 288 N. Y. 270.) Present — Hagarty, Acting P. J., Johnston, Adel, Lewis and Aldrich, JJ. [See post, p. 756.]