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Conrad v. Golden

Appellate Division of the Supreme Court of New York, Second Department
Jun 13, 1949
275 App. Div. 946 (N.Y. App. Div. 1949)

Summary

In Conrad v. Golden (275 App. Div. 946, supra) the contract under which the plaintiff was to be the exclusive broker for the sale of defendant's homes provided that it should continue "`until dissolution by mutual consent of the parties hereto'" (79 N.Y.S.2d 349, 350, and see Record on Appeal No. 18358, [9], par. 4, page 10) and the appellate court held that such quoted provision was "mere surplusage, and the contract, without a term of its duration, was terminable at will".

Summary of this case from Morgan v. Harman

Opinion

June 13, 1949.


In an action to restrain appellant from selling or disposing of houses constructed by him except through the real estate agency of the respondent, as alleged to be required by a written contract between the parties, order denying appellant's motion to dismiss the complaint for insufficiency under rule 106 of the Rules of Civil Practice, and granting respondent's motion to strike out the second affirmative defense set up in appellant's answer, reversed on the law, with $10 costs and disbursements, and appellant's motion to dismiss for insufficiency granted, with $10 costs. In our opinion the alleged contract upon which the action is based is too vague and indefinite to be enforced. It does not set forth the full intention of the parties with such certainty and explicitness that the intention of the parties may therefrom be ascertained with a reasonable degree of certainty. Moreover, the provision in the contract that it should terminate upon the mutual consent of the parties is mere surplusage, and the contract, without a term of its duration, was terminable at will. ( Petze v. Morse Dry Dock Repair Co., 125 App. Div. 267, 270, affd. 195 N.Y. 584; Varney v. Ditmars, 217 N.Y. 223, 228; Ansorge v. Kane, 244 N.Y. 395, 398; St. Regis Paper Co. v. Hubbs Hastings Paper Co., 235 N.Y. 30, 36; Schlegel Mfg. Co. v. Cooper's Glue Factory, 231 N.Y. 459, 462; Clark Paper Mfg. Co. v. Stenacher, 236 N.Y. 312, 316.) Carswell, Acting P.J., Johnston, Adel, Sneed and Wenzel, JJ., concur.


Summaries of

Conrad v. Golden

Appellate Division of the Supreme Court of New York, Second Department
Jun 13, 1949
275 App. Div. 946 (N.Y. App. Div. 1949)

In Conrad v. Golden (275 App. Div. 946, supra) the contract under which the plaintiff was to be the exclusive broker for the sale of defendant's homes provided that it should continue "`until dissolution by mutual consent of the parties hereto'" (79 N.Y.S.2d 349, 350, and see Record on Appeal No. 18358, [9], par. 4, page 10) and the appellate court held that such quoted provision was "mere surplusage, and the contract, without a term of its duration, was terminable at will".

Summary of this case from Morgan v. Harman

In Conrad v. Golden (275 App. Div. 946, supra) the plaintiff did not allege that he had gone to great expense to prepare to act and in acting under the contract.

Summary of this case from Morgan v. Harman
Case details for

Conrad v. Golden

Case Details

Full title:M.C. CONRAD, Doing Business as M.C. CONRAD REAL ESTATE AGENCY, Respondent…

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

Date published: Jun 13, 1949

Citations

275 App. Div. 946 (N.Y. App. Div. 1949)
89 N.Y.S.2d 689

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