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Robert S. Smith Corporation v. Kraushaar

Appellate Division of the Supreme Court of New York, Second Department
Nov 2, 1942
265 App. Div. 862 (N.Y. App. Div. 1942)

Opinion

November 2, 1942.


Order granting respondent's motion to vacate the personal judgment against him entered by the appellant in an action for specific performance of a contract for the sale of real property, reversed on the law, with ten dollars costs and disbursements, and the motion denied, without costs. Although the obvious purpose of the motion resulting in the order of March 5, 1940, which permitted plaintiff to withdraw the deed to the premises from the county clerk's office without prejudice to the personal judgment against respondent was to effect an accord and satisfaction of the claims between the parties arising from the operation of the property by the plaintiff, the order did not expressly provide for a discontinuance of the tender of performance required by the judgment. However, we are of the opinion that the legal effect of the order of March 5, 1940, which was obtained on notice to respondent, was to constitute it a waiver of the tender of actual performance by delivery or production of the deed embracing the covenant of seizin. Therefore, the disaffirmance of the judgment by the plaintiff could not be determined as a matter of law from the conveyance by it to its subsidiary corporation. The only elements of a tender required of the plaintiff after the order of March 5, 1940, were its readiness, willingness, and ability to perform. Whether plaintiff's conveyance of the property negatived those elements was a question of fact which the affidavits did not resolve in favor of respondent. Hagarty, Johnston, Adel, Taylor and Close, JJ., concur.


Summaries of

Robert S. Smith Corporation v. Kraushaar

Appellate Division of the Supreme Court of New York, Second Department
Nov 2, 1942
265 App. Div. 862 (N.Y. App. Div. 1942)
Case details for

Robert S. Smith Corporation v. Kraushaar

Case Details

Full title:THE ROBERT S. SMITH CORPORATION, Appellant, v. MEYER KRAUSHAAR…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 2, 1942

Citations

265 App. Div. 862 (N.Y. App. Div. 1942)