Fischel v. Fischel ( 1907 )

Scott, J.:

It appears from the papers before us that the action is one to compel specific performance by the appellant of an agreement to convey certain property to her codefendant and the plaintiff. A former motion for a bill of particulars was granted and in response to if the plaintiff set forth that the defendant Harry Fischel had agreed with plaintiff that the latter' would sell to the said Harry Fischel 125 shares in the Grand Theatre Company; that said Harry Fischel would endeavor to purchase a certain plot of land in the city of New York for the sum of $355,000 to be j>aid as follows: $50,000 in cash, $165,000 by taking the premises subject to a first mortgage thereon and $140,000 by taking the property subject to á second mortgage thereon ; that said Harry Fischel would advance the necessary amount of cash to purchase said land; that title to said property should be taken in the name of Bebecca Jacobs; that immediately upon the vesting of title in said Bebecca Jacobs she would by proper deed Convey the same to the said Harry Fischel and the plaintiff as tenants in common in certain proportions, and that the plaintiff should thereupon pay to said' Harry. Fischel one-tliird of the cash advanced upon said purchase, and tlie profits and losses should be received and borne by said plaintiff and-said Harry Fischel in proportion to their stipulated interests; that’said Bebecca Jacobs promised to carry out on her part the terms of the above agreement, and to make the conveyance therein provided for. He further said that the agreement between himself and Harry Fischel was partly oral and partly in writing and so much thereof as was in writing was signed by Harry Fischel; that the agreement said to have been made by Bebecca Jacobs was partly oral and partly in writing, and such part thereof as was in writing was signed by the defendant Harry Fischel on behalf of the defendant Bebecca Jacobs. The present motion is in effect that the plaintiff furnish the appellant with copies of so much of the above-described agreements as were in writing. We think that this motion should have, been granted. The appellant denies any knowledge of the alleged agreements. No fact is shown to contradict her in this regard, and nothing is' shown to raise any presumption that she knows the nature or purport of the agreéments, neither of which is alleged to have been signed by her. To' have granted the motion would have been in harmony with recent decisions, in this department. (Rhodes v. Adams, 113 App. Div. 304; United States Paper Co. v. De Haven, 115 id. 403.)

The order'must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

• Patterson, P. J., Ingraham,. McLaughlin and Houghton, JJ., concurred. _

Order' reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. -