Opinion
January 9, 1952.
Appeal from Supreme Court.
Present — Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ.
Plaintiff brought the action to recover possession of real property owned by the intestate at the time of her death. Amos G. Kiltz and Julia M. Kiltz, his wife, were the owners as tenants by the entirety of two farms located in Greene County. Kiltz also owned the farm in Albany County on which there was certain personal property valued at $6,000. Kiltz entered into a contract with defendant whereby he agreed to sell to the latter the three farms and the personal property. Thereafter, Kiltz died survived by his wife. After his death it was discovered that he did not own the property in Greene County individually and that upon his death the widow became the owner thereof. After the death of Kiltz his estate paid to defendant the sum of $700 and gave him a deed to the property in Albany County, at which time defendant executed and delivered to the Kiltz estate a general release of all claims of every name and nature. Defendant refused to surrender to plaintiffs the real property belonging to Mrs. Kiltz and thereupon this action was brought to compel him to do so. Defendant interposed a counterclaim alleging a contract between Kiltz and himself for the purchase of the property. It is conceded that Mrs. Kiltz never signed this contract and never gave her assent thereto. The Special Term struck out the counterclaim. Order unanimously affirmed, with $10 costs and disbursements.