Opinion
June 12, 1950.
In an action by the seller to compel performance of a written agreement for the sale and purchase of real property, the order grants respondent's motion to dismiss the complaint on the ground that it fails to state facts sufficient to constitute a cause of action; specifically on the ground that the words in the writing, "Contract to be acceptable to buyer", establish conclusively that further terms of sale were to be agreed upon, and that the writing therefore is incomplete and insufficient to satisfy the requirements of section 259 Real Prop. of the Real Property Law. Order reversed on the law, with $10 costs and disbursements, and the motion denied, with $10 costs, with leave to defendant to answer within ten days from the entry of the order hereon. On its face Exhibit A, annexed to the complaint, is a sufficient memorandum within the requirements of the Statute of Frauds, and it does not require an exclusive interpretation to the effect that additional material terms of the contract were left to subsequent agreement. This conclusion is reached in disregard of any prayer for a form of relief to which the plaintiff may not be entitled. Nolan, P.J., Carswell, Johnston, Adel and Sneed, JJ., concur. [See post, p. 987.]