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TURI v. MAROTTA

Appellate Division of the Supreme Court of New York, Fourth Department
Jan 16, 1953
281 AD 804 (N.Y. App. Div. 1953)

Opinion


281 A.D. 804 119 N.Y.S.2d 485 BERNARDO TURI et al., Respondents, v. MILDRED C. MAROTTA et al., Appellants, et al., Defendants. Supreme Court of New York, Fourth Department. January 16, 1953

         Order insofar as it denies defendants' motion to frame issues to be submitted to the jury reversed on the law and motion granted in that respect, and otherwise order affirmed, without costs of this appeal to any party. Memorandum: The plaintiffs lost all rights to compel specific performance against the defendants Marotta when they entered into the later contract with the defendant Orlando. ( Saperstein v. Mechanicss&sFarmers Sav. Bank, 228 N.Y. 257, 260; Cohen, v. A. F. A. Realty Corp., 250 N.Y. 262; Potter v. County of Essex, 272 A.D. 969; Price v. Kline, 278 A.D. 657.) When they commenced the action they were, however, entitled to equitable relief to compel the Marottas 'to cancel of record the agreement dated January 16, 1952, between the plaintiffs and' the defendants Marotta. This these defendants have done by recording the quitclaim deed after the action was commenced. The issues between plaintiffs and defendants Marotta are now limited to the breach of contract and damages. 'The rule has been modified since the Code practice which authorizes the joinder of legal and equitable causes of action, and while the equitable relief will be denied in such a case, now the action will be retained and the issues as to the breach of contract and damages will be sent to a jury for trial.' (Haffey v. Lynch, 143 N.Y. 241, 247; see, also, Saperstein v. Mechanicss&sFarmers Sav. Bank, supra, p. 262, and cases cited.) The order insofar as it denies the motion of the defendants Marotta to frame issues to be submitted to the jury should be reversed and the motion granted. The questions submitted appear to be the only issues of fact to be determined between plaintiffs and the defendants Marotta.

          All concur. (Appeal from an order denying defendants-appellants' motion to frame issues for a jury trial, in an action to compel defendants to specifically perform a contract for the purchase of realty.) Present--Taylor, P. J., McCurn, Vaughan, Kimball and Piper, JJ.

Summaries of

TURI v. MAROTTA

Appellate Division of the Supreme Court of New York, Fourth Department
Jan 16, 1953
281 AD 804 (N.Y. App. Div. 1953)
Case details for

TURI v. MAROTTA

Case Details

Full title:BERNARDO TURI et al., Respondents, v. MILDRED C. MAROTTA et al.…

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

Date published: Jan 16, 1953

Citations

281 AD 804 (N.Y. App. Div. 1953)
281 App. Div. 804
119 N.Y.S.2d 485

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