Schaps v. Roberman

After the complaint had been dismissed in an action brought by respondent to compel appellant and his wife to perform a written memorandum for the sale and purchase of real property, respondent brought this action at law to recover damages for breach of contract. The complaint in the specific performance action was dismissed on the merits after trial because appellant’s wife had not signed the memorandum although appellant had. The appeal is from an order denying appellant’s motion to dismiss the complaint herein on the ground that the judgment dismissing the complaint in the prior action for specific performance is res judicata as to this action at law. Order affirmed, with $10 costs and disbursements. (Clarkson Bldg. Corp. v. Schafer-Nebenzahl Investing Co., 234 App. Div. 794, affg. 138 Misc. 750.) Wenzel, Acting P. J., Beldock, Ughetta, Hallinan and Kleinfeld, JJ., concur.