Turi v. Marotta

281 A.D. 805, 119 N.Y.S.2d 487, 1953 N.Y. App. Div. LEXIS 3338

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 16, 1953
• Status: Published

Opinion

Order reversed on the law and facts, with $10 costs and disbursements, and motion granted, with costs. Memorandum: So far as the record discloses, when defendant Orlando entered into the contract with plaintiffs he had no knowledge of the contract previously entered into by the plaintiffs with defendants Marotta. He was ready and willing to close on the closing date set forth in his contract, but when it appeared that the Marotta contract had been recorded he properly demanded of plaintiffs that it be cancelled of record. On being served with plaintiffs’ complaint for specific performance he again expressed his willingness to perform in his answer and counterclaim demanding specific performance by the plaintiffs. When the defendants Marotta removed the cloud on the title there was no issue of fact remaining to be tried between plaintiffs and Orlando and his motion for summary judgment to the extent of dismissing the plaintiffs’ complaint and for an affirmative judgment decreeing specific performance of the contract as against, plaintiffs should have been granted. The order should be reversed, with $10 costs and disbursements, and the motion granted, with costs. We take it that the demand in the answer and counterclaim for damages was only for alternative relief in the event specific performance could not be granted. AH concur. (Appeals from an order denying a motion by defendant Orlando for summary judgment under rule 113 of the Rules of Civil Practice.) Present — Taylor, P. J., McCurn, Vaughan, Kimball and Piper, JJ. [See post, p. 947.]