Lye v. Obermeyer , 156 N.Y.S. 1059 ( 1915 )

Per Ctjriam:

Obermeyer & Liebmann disavow any obligations on account of the contract between Doremus and the plaintiff. They are, therefore, not in a position to enforce specific performance, although they may submit to the direction of the court in that regard. Doremus, although a party to the action, has never offered to perform, nor does he ask for specific performance, although in open court he seems to have consented to it. He is overpaid by $125, through misrepresentation or misunderstanding as to the amount of the mortgage. Therefore, the plaintiff should not be obliged to perform against her will. There is no judgment or finding as to the cause of action sought to be alleged in the complaint against Obermeyer & Liebmann, but the record shows that no cause of action has been proven. The judgment should be amended so as to provide for the dismissal, on the merits, of the complaint against Obermeyer & Liebmann. The judgment so far as it directs specific performance should be reversed, without costs, unless plaintiff shall, within twenty days after entry of the order of this court, serve on defendants’ attorneys notice whether she accepts specific performance as provided by the judgment. In case of such election, the judgment, amended as above, is affirmed, without costs. Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ., concurred. Judgment amended so as to provide for the dismissal, on the merits, of the complaint against Obermeyer & Liebmann. The judgment so far as it directs specific performance reversed, without costs, unless plaintiff shall, within twenty dkys after entry of the order of this court, serve on defendants’ attorneys notice whether she accepts specific performance as provided by the judgment. In case of such election the judgment, amended as above, is affirmed, without costs. Order to be settled before Mr. Justice Thomas.