Opinion
March 24, 1948.
Present — Hill, P.J., Heffernan, Foster, Russell and Deyo, JJ.
Defendant has appealed from a judgment of the Delaware Trial Term of the Supreme Court directing specific performance of an option for the sale of real property and from an order denying her motion for a new trial on the ground of newly discovered evidence. On July 5, 1940, defendant's testate gave plaintiff's assignor an option to purchase property in Delaware County for the sum of $12,000. The option was under seal and provided for acceptance at any time within two years from the date thereof by giving to the testate, his heirs, executors, administrators or assigns, a written notice of acceptance. Defendant's testate died before the expiration of the time within which to exercise the option. Plaintiff became the owner of the option on April 1, 1941, and on June 25th of the same year he served a notice required for the acceptance of the option and tendered payment. The offer was rejected on various grounds, among others, that the decedent's signature to the contract was obtained by fraud and that the consideration for the sale was inadequate. The trial court resolved the various questions in favor of plaintiff and the evidence sustains the finding of the trial court. The defendant's motion for a new trial on the ground of newly discovered evidence was also properly denied. Judgment and order unanimously affirmed, with costs to respondent.