Sholom & Zuckerbrot Queens Leasing Corp. v. Forate Realty Corp.

Appellate Division of the Supreme Court of New York

Sholom & Zuckerbrot Queens Leasing Corp. v. Forate Realty Corp.

29 A.D.2d 571, 286 N.Y.S.2d 364, 1967 N.Y. App. Div. LEXIS 2639

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

DecidedDecember 29, 1967

StatusPublished

Cited by4 cases

This text of 29 A.D.2d 571 (Sholom & Zuckerbrot Queens Leasing Corp. v. Forate Realty Corp.) 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

Sholom & Zuckerbrot Queens Leasing Corp. v. Forate Realty Corp., 29 A.D.2d 571, 286 N.Y.S.2d 364, 1967 N.Y. App. Div. LEXIS 2639 (N.Y. Ct. App. 1967).

Pincite

Opinion

Order of the ¡Supreme Court, Queens County, dated May 31, 1967, modified, on the law, (1) so as to except the third cause of action from the denial of plaintiff’s motion for summary judgment and to grant the motion as to that cause of action and (2) so as to strike out the decretal provision denying defendant’s cross motion for summary judgment dismissing the first and second causes of action and to provide that the cross motion is granted. As so modified, order affirmed, without costs. The oral agreement alleged by defendant in opposing the third cause of action was without valuable consideration to plaintiff because defendant’s oral promise to give a mortgage on its building was unenforcible (General Obligations Law, § 5-703; cf. Bateman Fuel Oil Serv. v. Sklaver, 6 A D 2d 868). Plaintiff, not having accepted a new obligation and security, was not obliged to forbear enforcement of the September 12, 1966 promissory note. Plaintiff’s first cause of action, to recover the full amount of the commission, is based upon an agreement which was modified or superseded by the letter agreement of November 1, 1965, providing for payment in three installments, and should have been dismissed. Plaintiff’s second cause of action, also for the full commission, is based on the theory of anticipatory breach, alleging a default in payment of the first installment due under the letter agreement. The theory of anticipatory breach has no application to this contract for periodic payment of money; and recovery is limited to the payments due as of commencement of the action (Sinkwich v. Drew & Co., 9 A D 2d 42, 46; McCann v. Hancock Mut. Life Ins. Co., 48 Misc 2d 325, 326). Secondly, the parties agree that the promissory note of September 12, 1966 was delivered and accepted in payment of the first installment due under the letter agreement. Taking the note in payment, and not merely as evidence of the debt, extinguished the debt and defendant was not in default under the agreement (Industrial Bank of Commerce v. Shapiro, 276 App. Div. 370, 372, affd. 302 N. Y. 566). Christ, Acting P. J., Brennan, Hopkins and Munder, JJ., concur; Rabin, J., not voting.

Free access — add to your briefcase to read the full text and ask questions with AI

Order of the ¡Supreme Court, Queens County, dated May 31, 1967, modified, on the law, (1) so as to except the third cause of action from the denial of plaintiff’s motion for summary judgment and to grant the motion as to that cause of action and (2) so as to strike out the decretal provision denying defendant’s cross motion for summary judgment dismissing the first and second causes of action and to provide that the cross motion is granted. As so modified, order affirmed, without costs. The oral agreement alleged by defendant in opposing the third cause of action was without valuable consideration to plaintiff because defendant’s oral promise to give a mortgage on its building was unenforcible (General Obligations Law, § 5-703; cf. Bateman Fuel Oil Serv. v. Sklaver, 6 A D 2d 868). Plaintiff, not having accepted a new obligation and security, was not obliged to forbear enforcement of the September 12, 1966 promissory note. Plaintiff’s first cause of action, to recover the full amount of the commission, is based upon an agreement which was modified or superseded by the letter agreement of November 1, 1965, providing for payment in three installments, and should have been dismissed. Plaintiff’s second cause of action, also for the full commission, is based on the theory of anticipatory breach, alleging a default in payment of the first installment due under the letter agreement. The theory of anticipatory breach has no application to this contract for periodic payment of money; and recovery is limited to the payments due as of commencement of the action (Sinkwich v. Drew & Co., 9 A D 2d 42, 46; McCann v. Hancock Mut. Life Ins. Co., 48 Misc 2d 325, 326). Secondly, the parties agree that the promissory note of September 12, 1966 was delivered and accepted in payment of the first installment due under the letter agreement. Taking the note in payment, and not merely as evidence of the debt, extinguished the debt and defendant was not in default under the agreement (Industrial Bank of Commerce v. Shapiro, 276 App. Div. 370, 372, affd. 302 N. Y. 566). Christ, Acting P. J., Brennan, Hopkins and Munder, JJ., concur; Rabin, J., not voting.

Cite This Page — Counsel Stack

Bluebook (online)

29 A.D.2d 571, 286 N.Y.S.2d 364, 1967 N.Y. App. Div. LEXIS 2639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sholom-zuckerbrot-queens-leasing-corp-v-forate-realty-corp-nyappdiv-1967.

Opinion

Related

Cite This Page — Counsel Stack