Schapiro v. Madera

243 A.D. 637

Opinion

Action to enforce the specific performance of a contract for the purchase of real property. Appeal from judgment directing specific performance. Judgment reversed on the law and the facts, with costs, complaint dismissed, with costs, and judgment directed for defendants, on their counterclaim, for $400, the amount of the down payment, with interest and costs. The court reverses findings of fact numbered second, third, fourth, seventh and eighth and finds the following findings proposed by defendants in addition to those allowed by the trial court and not here reversed, namely, proposed findings numbered 2, 3, 4, 11, 12, 13, 14, 16, 17 and 18. The conclusions of law are reversed. Defendants’ proposed conclusion of law numbered 1 is modified by inserting the words “ in writing ” after the word “ agreed,” and as so modified is found, and the following conclusions of law proposed by defendants are found: Nos. 4, 5, 6, 8, 9, 10, 11. The agreement is unconscionable on its face and does not affect the relationship which the defendants contemplated, namely, that of vendor and purchaser. Defendant Pasquale Madera did not sign the contract and was at no time a party to it. He cannot, therefore, be bound by its terms. The other two defendants, who were unable to understand the provisions of the. contract, were induced to execute it by virtue of a voluntary explanation of its meaning given by plaintiff’s attorney, which, we feel, constituted an innocent but nevertheless erroneous interpretation of its legal effect. Lazansky, P. J., Hagarty, Carswell, Tompkins and Davis, JJ., concur.