Serviss v. Hirsh

241 A.D. 701

Opinion

Judgment reversed on the law and the facts and a new trial granted, costs to abide the event. In this action by a receiver in supplementary proceedings it appears that there was an obligation due from third parties to the judgment debtor maturing on December 1, 1932. While the defendants originally had an option to cancel the contract out of which this obligation arose and to return the property, with the correlative duty of the judgment debtor to return the purchase price, the defendants had rendered themselves unable to perform on their part under the option, and the obligation to pay became single. It was stipulated that the trial should be had without a jury and that no findings need be made; and we are, therefore, not informed as to the reasons for granting a dismissal of the complaint. We think, under these circumstances, a new trial must be had. Lazansky, P. J., Young, Kapper, Carswell and Davis, JJ., concur.