Vogt v. Orlando

33 A.D.2d 705, 306 N.Y.S.2d 193, 1969 N.Y. App. Div. LEXIS 2817

Opinion

In an action for specific performance of a contract between plaintiff and defendant’s testatrix to sell the testatrix’ real property, plaintiff appeals from a judgment of the Supreme Court, Suffolk County, entered February 10, 1967, which .dismissed the complaint upon the merits after a nonjury trial. Judgment reversed, on the law, and new trial granted, with costs to abide the event. The findings of fact below are affirmed. The daughter of the purchaser (plaintiff) may testify that defendant’s testatrix signed a binder in the presence of the daughter, because the latter does not have an interest in the transaction (Whitman v. Foley, 125 N. Y. 651; Walsh v. Herrick, 248 App. Div. 799). Comparison of the signatures on the binder and on the contract is admissible evidence by witnesses called for that purpose (CPLB 4536). Brennan, Acting P. J., Hopkins, Benjamin, Munder and Martuscello, JJ., concur.