Schwartz v. Greenberg

Appellate Division of the Supreme Court of New York

Schwartz v. Greenberg

279 A.D. 750, 108 N.Y.S.2d 421, 1951 N.Y. App. Div. LEXIS 3644

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

DecidedDecember 3, 1951

StatusPublished

Cited by4 cases

This text of 279 A.D. 750 (Schwartz v. Greenberg) 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

Schwartz v. Greenberg, 279 A.D. 750, 108 N.Y.S.2d 421, 1951 N.Y. App. Div. LEXIS 3644 (N.Y. Ct. App. 1951).

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Opinion

In our opinion the proof establishes that there was a valid and binding oral agreement entered into by the parties upon which their minds met in all respects; and failure to deliver a signed copy of the writing setting forth the terms of that agreement cannot defeat its enforcement. (Pratt v. Hudson Riv. R. R. Co., 21 N. Y. 305, 308; Sherry v. Proal, 131 App. Div. 774, 776.) The signing by respondent of a copy of the writing setting forth the terms of the agreement constituted a memorandum sufficient to satisfy the Statute of Frauds. (2 Williston on Contracts [Bev. ed.], § 579A; Restatement, Contracts, § 216; Argus Co. v. Mayor of Albany, 55 N. Y. 495.) Appellant proved damages in the above-stated amount [751]*751within subdivision 2 of section 145 of the Personal Property Law (Agar v. Orda, 264 N. Y. 248) and is entitled to interest thereon from the time of respondent’s refusal to perform. (Civ. Prac. Act, § 480; Steinbugler v. Atwater & Co., No. 1., 264 App. Div. 864, affd. 289 N. Y. 816.) Findings of fact inconsistent herewith are reversed and new findings will be made. Carswell, Adel, Sneed and Wenzel, JJ., concur; Nolan, P. J., dissents and votes to affirm. Settle order on notice. [For opinion denying motion to dismiss complaint see 199 Misc. 117.]

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In our opinion the proof establishes that there was a valid and binding oral agreement entered into by the parties upon which their minds met in all respects; and failure to deliver a signed copy of the writing setting forth the terms of that agreement cannot defeat its enforcement. (Pratt v. Hudson Riv. R. R. Co., 21 N. Y. 305, 308; Sherry v. Proal, 131 App. Div. 774, 776.) The signing by respondent of a copy of the writing setting forth the terms of the agreement constituted a memorandum sufficient to satisfy the Statute of Frauds. (2 Williston on Contracts [Bev. ed.], § 579A; Restatement, Contracts, § 216; Argus Co. v. Mayor of Albany, 55 N. Y. 495.) Appellant proved damages in the above-stated amount [751]*751within subdivision 2 of section 145 of the Personal Property Law (Agar v. Orda, 264 N. Y. 248) and is entitled to interest thereon from the time of respondent’s refusal to perform. (Civ. Prac. Act, § 480; Steinbugler v. Atwater & Co., No. 1., 264 App. Div. 864, affd. 289 N. Y. 816.) Findings of fact inconsistent herewith are reversed and new findings will be made. Carswell, Adel, Sneed and Wenzel, JJ., concur; Nolan, P. J., dissents and votes to affirm. Settle order on notice. [For opinion denying motion to dismiss complaint see 199 Misc. 117.]

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Bluebook (online)

279 A.D. 750, 108 N.Y.S.2d 421, 1951 N.Y. App. Div. LEXIS 3644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwartz-v-greenberg-nyappdiv-1951.

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