Caren v. Liebovitz

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

Decided June 15, 1906

Appellate Division of the Supreme Court of the State of New York · decided 1906-06-15

Appeal by the defendant, Samuel Liebovitz, from a judgment in favor of the plaintiff in an action in the Municipal Court of the city of Mew York. The action was on a check for $200 given by the defendant to the plaintiff on the purchase price of a piece of real estate. The plaintiff agreed in writing to convey to the defendant’s brother the real estate, and the check was given at the same time.

Decided 1906-06-15

Gaynor, J.:

¶1It is not necessary to inquire into the disputed question whether the covenants the plaintiff wanted to put in the second contract would have been incumbrances on the property. The refusal of the plaintiff to make the second contract the same in. its terms as the first did not defeat the consideration for the check. It was given for a good consideration, viz., the first contract, and that remains and can be enforced. The plaintiff is just as much bound by the contract as it was first drawn as she would be if it were drawn over and signed again., It satisfies the provisions of the Statute of Frauds, and is complete against her. That the purchaser has not signed it does not detract from its effect against her.

¶2The judgment should be affirmed.

¶3Hirschberg, P. J., Woodward and Rich, JJ., concurred. Miller, J., dissented on the ground that the plaintiff herself refused to perform the contract.

¶4Judgment of the Municipal Court affirmed, with costs.