Opinion
March 20, 1950.
In an action for specific performance of a contract for the sale of real property, defendants appeal from an order denying their motion for judgment on the pleadings. Order affirmed, with $10 costs and disbursements. The appellants urge that the memorandum is unenforcible because the property involved is not described with any degree of definiteness; that the provision for the release of property from the burden of the mortgage is indefinite and unenforcible; and that the provision "Contract to be executed within one week and title to pass not later than 120 days thereafter", shows that no contract had been agreed upon. In addition, they urge that the wife is not bound because she did not sign the writing. None of the contentions now urged by defendants requires dismissal of the complaint. Plaintiff may seek specific performance although he did not sign the memorandum. ( Epstein v. Gluckin, 233 N.Y. 490.) There is no allegation in the complaint that defendants own any property at the location named in the memorandum other than the property referred to therein. It cannot now be said that the boundaries cannot be fixed by reference to instruments of public record. ( Waring v. Ayres, 40 N.Y. 357; Morrison v. Brenmohl, 137 App. Div. 4.) The parties have stated there is a customary release clause. When its terms are established any ambiguity in the memorandum as to releases may be removed. (9 Wigmore on Evidence [3d ed.], § 2440.) On the face of the complaint it does not appear that the defendant wife did not, in writing, authorize her husband to act for her, or that she did not, in writing, ratify and confirm the agreement. She will not, however, be estopped from claiming the Statute of Frauds was not complied with if all that the plaintiff did was to pay money on the strength of the agreement and continue to negotiate. ( Cooley v. Lobdell, 153 N.Y. 596.) Carswell, Acting P.J., Johnston, Sneed, Wenzel and MacCrate, JJ., concur.