Summary
In Jacobson v. Rechnitz, 46 Misc. 135, upon a motion for new trial, Mr. Justice Gaynor held that the vendor was presumed to be able to carry out his contract; that complaint, however, contained a specific allegation that it was within defendant's power to carry out the agreement.
Summary of this case from Hollander v. LustikOpinion
January, 1905.
Rose Putzel for plaintiffs.
Max H. Newman for defendant.
All of the complaint that is material is that the defendant, in a written agreement to convey a plot of land to the plaintiffs on September 30, 1902, agreed that on sixty days' notice from the plaintiffs he would procure a cancellation of a lease that was on the property on or before March 1, 1904, and that the lessee would vacate by that time; that it is within his power to carry out the said agreement, but that he refuses to do so, although such notice was given to him. The complaint also alleges that the plaintiffs purchased the property to occupy it for business purposes, and that they cannot get adequate damages at law for the breach. There are allegations of things told the plaintiffs by the lessee, and else, that should have been omitted.
This is a case for specific performance, or, if that turn out on the trial to be impossible, for other suitable equitable relief if there be any. That the cancellation of the lease must be by the act of the lessee does not make the complaint bad, for the defendant has agreed to get the cancellation, and may be able to do so, and presumably is (Bennett v. Abrams, 41 Barb. 619).
The motion is granted.