Levin v. Dietz

Gaynor, J. A former judgment for the plaintiffs was reversed on appeal (106 App. Div. 208). The trial court had found that there was an oral contract of sale, but no written contract, but gave judgment of specific performance, nevertheless, on the ground that the Statute of Frauds had not been pleaded. This grew out of the mistaken rule of pleading now established in this state that the Statute of Frauds has to be pleaded, whereas it established a rule of evidence only, and not a rule of pleading. On appeal it was decided that the statute did not need to be pleaded, for the reason that the complaint alleges a written contract which the answer denies. But the writings which it was claimed constituted the written contract were all in evidence, as the appeal record shows; and if they, taken together, made out a written contract in the opinion of the appeal court, it is not easy to believe that it would have reversed the judgment; for there is no rage on appeal to upset judgments, and nothing is better known among us than that a finding of fact will be and often is supplied on appeal on written evidence, or uncontradieted oral evidence, to affirm a judgment. But, notwithstanding this logical conclusion to be drawn from the reversal, the opinion written on appeal seems to say that the question whether the writings constitute a contract is left open, and I may therefore with propriety so consider it, which I otherwise could not do. The writing on the back of the card, signed by the defendant and given to the broker who was negotiating the sale, [596] •describes the two plots of land described in the complaint, and invites an offer of $17,000 for them. The defendant’s letter of December 3 to the plaintiffs mentions no property, but fixes a time and place when he will deliver them his deed •on payment of $16,500. His simultaneous letter to the said broker also fixes the same time and place for the delivery of his deed, and specifies the “ plots at Pitkin avenue ” as the land to be conveyed, but does not mention the price. It notifies the broker that the defendant had written the letter to the plaintiff, thus connecting the two letters. These three writings taken together satisfy the requirement of the Statute of Frauds, viz., section 224 of the Real Property Law, that “ the contract, or some note or memorandum thereof, expressing the consideration ”, be in writing and subscribed by the grantor. They show the grantor, the grantee and the price, and identify the land, which is the test of sufficiency. The letter of December 3 to the broker only describes the land in general terms as the “plots at Pitkin ave.,” it is true, but the prior writing given to the broker locates them precisely on the said avenue. This made it unnecessary for the plaintiffs to prove de hors that the defendant owned no other land on Pitkin avenue except that described in the complaint, in order to show that the writings enable the land to be identified and described with certainty. The parties were dealing in the city of New York, and the legal inference ia that the writings refer to land there. Judgment for the plaintiffs.