Berlin v. Homer Harman, Inc.

The complaint alleges that in order to induce appellants to purchase certain lands and dwelling houses to be erected thereon by respondents in a residential development known as Kings Point Estates, in the village of Kings Point, respondents agreed to construct a park and swimming pool in the development for the exclusive use of appellants and other residents of the Kings Point Estates; that respondents agreed to maintain the pool without charge to appellants for a period of one year; that respondents agreed to construct the park and pool on a tract of land within the development, and that respondents failed to perform, and are negotiating for the sale of the land upon which the park and pool were to be constructed. The relief sought is: (1) that respondents be compelled to specifically perform the contract alleged in the complaint; (2) that a lien be impressed upon the property for such an amount as may be deemed the value of the land with a park and pool erected thereon, and (3) that respondents be restrained from selling or encumbering the real property upon which the park and pool were to be constructed. The appeal is from an order dismissing the complaint for insufficiency, with leave to plead over. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. The complaint states facts sufficient to constitute a cause of action. (Phillips v. West Rockaway Land Co., 226 N. Y. 507; Hofmann v. Hofmann, 172 Misc. 378, affd. 259 App. Div. 820, mod. on other grounds, 283 N. Y. 730.) Nolan, P. J., Wenzel, Beldock, Murphy and Ughetta, JJ., concur.