Summary
In Quinto v. Alexander (123 App. Div. 1) the decision turned entirely upon the right of a vendee to recover earnest money upon the ground that the contract was not enforcible under the Statute of Frauds because not signed by him.
Summary of this case from 300 West End Avenue Corporation v. WarnerOpinion
December 5, 1907.
Meyer Greenberg, for the appellant.
James E. Smyth, for the respondent.
This action is to recover back $50 paid by the plaintiff to the defendant as a deposit on a contract for the purchase by the former of the latter of a lot of land. The defendant did not refuse performance, but the plaintiff claims the right to recover on the ground that the contract was not sufficiently expressed in writing to satisfy the statute of frauds. But this is wholly irrelevant. It is only the vendor who can raise that question. Even if the contract be oral, the vendee has to carry it out or forfeit the amount which he has paid, on a tender of performance by the vendor. The statute only requires that the contract of sale be reduced to writing and signed by the vendor; the vendee does not need to sign it (Real Property Law, § 224; Collier v. Coates, 17 Barb. 471; Pelletreau v. Brennan, 113 App. Div. 806).
The judgment should be reversed.
WOODWARD, JENKS, HOOKER and RICH, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.