Lashway v. Sorell

Sweeney, J.

Plaintiff brought this action for specific performance of a land sale contract, alleging that he timely exercised an "option for property” obtained from defendant for a consideration of $200. Defendant moved to dismiss the complaint on the ground it does not state a cause of action and further, any such action is barred by the Statute of Frauds. Special Term, treating the motion as one for summary judgment pursuant to CPLR 3211 (subd. [c]), held that a certain written memorandum was sufficient to satisfy the Statute of Frauds, and denied the motion.

The sole issue on this appeal is whether the memorandum evidencing the alleged contract is sufficient to overcome the Statute of Frauds. It reads as follows:

"Option for Property Mar. 22, 73

I hereby agree to sell.to Leonard Lashway Approximately

450 acres, in the Town of Duane for_ per acre. Lot No.

3-4-11 Yol No.-Page_Option Contract for 1 months.

$60,000 Total — $19,500 Down payment Bal in Five Years at .07% Int.

Buyer: Leonard Lashway Seller: Richard Sorell Witness:

Leonard Lashway

After 30 day the sum of $200. belong to Richard Sorell

$147.70 Tax”

On a motion for summary judgment, the sufficiency of the writing must be decided as a matter of law from its face. (Monaco v Levy, 12 AD2d 790, 791.) The present memorandum discloses no intent to agree subsequently on any essential term of the contract. It evidences completely all of the essential terms of a valid contract for the sale of real property. While we agree with the dissent that the memorandum contains no reference to a mortgage, it does not fail of its effect on that account. A reading thereof clearly demonstrates that the purchase price is $60,000, with $19,500 as the down payment. Presumably, the balance is to be paid either by way of a bond with a mortgage as security or under an installment contract, over a period of five years at 7% interest. Such details may be left open for future specification without destruction of the contract. (N. E. D. Holding Co. v McKinley, 246 NY 40, 44-45.) Plaintiff seeks specific performance of the contract for the sale of the property, and it can be specifically performed without reference to a mortgage. Such was not the case in Keystone Hardware Corp. v Tague (246 NY 79) where the memorandum mentioned mortgages but did not provide for the term of the mortgages.

Whether the writing evidences the actual oral agreement between the parties is a factual issue to be resolved by a trial. Neither the parol evidence rule nor the Statute of Frauds forbids proof of the actual agreement in order to establish whether the writing does, or does not, accurately evidence such prior oral agreement. (Balkum v Marino, 299 NY 590, 592.) On the trial, therefore, parol evidence will be admissible to support defendant’s claims that there are essential terms lacking in the present memorandum. We conclude that it is sufficient on its face, as a matter of law, to overcome the Statute of Frauds and Special Term properly denied the motion.

The order should be affirmed, with costs.