From Casetext: Smarter Legal Research

Levy v. Rothfeld

Appellate Division of the Supreme Court of New York, Second Department
Feb 3, 1947
271 App. Div. 973 (N.Y. App. Div. 1947)

Opinion

February 3, 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 right, 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. Rothfeld as seller. Upon inquiry, Mr. Falk stated the relationship between the parties and falsely represented that Mrs. Rothfeld 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. Rothfeld 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. Rothfeld's authority, or from invoking the aid of the Statute of Frauds. ( Joehl v. Tricarico, ante, p. 898.) The order and judgment against Mrs. Rothfeld, as modified, is affirmed in order that she be compelled to convey to plaintiff whatever interest she may have in the property.


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.


Summaries of

Levy v. Rothfeld

Appellate Division of the Supreme Court of New York, Second Department
Feb 3, 1947
271 App. Div. 973 (N.Y. App. Div. 1947)
Case details for

Levy v. Rothfeld

Case Details

Full title:JACK LEVY, Respondent, v. ANNA ROTHFELD et al., Defendants, and CHARLOTTE…

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

Date published: Feb 3, 1947

Citations

271 App. Div. 973 (N.Y. App. Div. 1947)

Citing Cases

White v. Smith

The cause of action is sufficient. Although the contract is signed by the husband only, proof is admissible…

Imperium Capital, LLC v. Krasilovsky (Mercer) Family Ltd. P'ship

Moreover, the Statute of Frauds ought not to be used to immunize fraudulent conduct (Channel Master Corp.…