Levy v. Rothfeld , 271 A.D.2d 973 ( 1947 )

In an action for specific performance of an agreement for the sale of real property, plaintiff’s motion for summary judgment was granted and defendants appeal. Order and judgment (one paper) modified on the law and the facts by inserting an additional decretal paragraph providing that defendant Anna Rothfeld be directed to convey to plaintiff all her fight, title and interest in and to the property involved. As so modified, order and judgment affirmed, without costs. Defendant Rothfeld is the mother of defendant Charlotte Falk, who is the wife of defendant Charles Falk. On July 4,1941, Mrs. Rothfeld conveyed the property in question to Mr. and Mrs. Falk. In July, 1945, Mr. and Mrs. Falk listed the property with a broker for sale. As a result of negotiations between plaintiff and Mr. and Mrs. Falk, in which both Falks actively participated, a contract for the sale of the property was executed on September 26, 1945. The contract named Mrs. Eothfeld as seller. Upon inquiry, Mr. Falk stated the relationship between the parties and falsely represented that Mrs. Eothfeld was the record owner, whereas in fact Mr. and Mrs. Falk were then the record owners. Plaintiff made the $3,500 down payment, which Mr. Falk accepted. After the execution of the contract, plaintiff bought-a lot adjoining the property involved. After several adjournments of the closing date, granted at the request of the Falks, they and Mrs. Eothfeld refused to convey. In our opinion, the judgment against the defendants Falk should be affirmed on the ground that they were undisclosed principals and are - now estopped from denying Mrs. Eothfeld’s authority, or from invoking the aid of the Statute of Frauds. (Joahl v. Tricarico, ante, p. 898.) The order and judgment against Mrs. Eothfeld, as modified, is affirmed in order that she be compelled to convey to plaintiff whatever interest she may have in the property. Carswell, Johnston and Adel, JJ., concur; Hagarty, Acting P. J., concurs but adheres to his views expressed in Joehl V. Tricarico (ante, p. 898); Nolan, J., dissents, with the following memorandum: I dissent and vote to reverse and to deny the motion on the ground that the motion papers do not present evidentiary facts sufficient to sustain a summary judgment against any defendant; and on the further ground that, as to defendant Charlotte Falk, the complaint does not state a cause of action.