Mondrus v. Salt Haven Corp. , 270 A.D. 1030 ( 1946 )

This is an action for specific performance of a contract to convey real property owned by appellant corporation, and the plaintiff joins as a party defendant a lawyer named Charles W. Philipbar. The claim is that the contract sought to be specifically performed was signed by the lawyer as the attorney and agent for the corporation. The corporation now seeks to repudiate the contract by reason of section 259 of the Real Property Law which provides, briefly, that such a contract is void unless subscribed by the party to be charged or by his lawful agent thereunto authorized by writing. Order denying the appellant corporation^ motion for summary judgment dismissing the complaint modified on the law, by striking from the ordering paragraph the word “ denied ” and substituting therefor the word “ granted ”, and by adding a further ordering paragraph granting the plaintiff’s motion for leave to serve an amended complaint containing the proposed second and third causes of action. As thus modified, the order is affirmed, without costs, the amended complaint to be served within twenty days after the entry of an order hereon. We are of opinion that the plaintiff has not negatived the appellant’s showing that its lawyer was not authorized by writing to enter into a contract to convey the property in question. (Real Property Law, § 259.) The Special Term, having denied the appellant’s motion, granted the plaintiff’s motion to serve an amended complaint, but that provision was not carried into the order. Lewis, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur. [See post, p. 1046.]