Opinion
May, 1936.
Appeal from an order granting defendant's motion for summary judgment and the judgment entered thereon; and from another order granting reargument but adhering to the determination made on the original motion. Orders reversed on the law, with ten dollars costs and disbursements, the motion for summary judgment denied and the summary judgment vacated. The action was in the nature of specific performance of a contract for the sale of real property. An agreement of sale was made in letters upon which the terms of the sale were stated. There was to be a formal agreement in writing. One was prepared and signed by the defendant, but not signed by the plaintiff, and not delivered. This, it appears, contained some oral modifications of the original contract. Matters were then held in abeyance before closing for the reason that a tenant was claiming rights in the premises. It is claimed by the defendant that the plaintiff thereupon abandoned the contract, but this is denied. On the part of the plaintiff, it is claimed that possession and dominion over the property were given to him under the terms of the original contract. This is denied by the defendant. We think there are issues of fact to be tried. We cannot from this record determine whether or not the parties reached a definite agreement of sale. (See Weintraub v. Kruse, 234 N.Y. 575; Wertheimer v. Boehm, 241 id. 575; Ansorge v. Kane, 244 id. 395; Kingsbridge Imp. Co. v. American E.P. Nat. Bank, 249 id. 97.) Lazansky, P.J., Carswell, Davis and Johnston, JJ., concur; Hagarty, J., dissents and votes to affirm.