Gabay v. Rosenberg
| Decision Date | 11 December 1968 |
| Citation | 23 N.Y.2d 747,296 N.Y.S.2d 795 |
| Parties | , 244 N.E.2d 267 Leda GABAY, Respondent, v. Esther ROSENBERG, as Executrix, etc., Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from the Supreme Court, Appellate Division, Second Department, 29 A.D.2d 653, 287 N.Y.S.2d 451.
Wechsler & Solodar, New York City (Max Wechsler, Albert L. Solodar, Alan L. Wechsler, New York City, of counsel), for defendant-appellant.
Sydney A. Fried, Yonkers, for plaintiff-respondent.
Action was brought for specific performance of a partnership agreement between the plaintiff and the defendant's testator. The agreement gave to plaintiff a right to purchase the interest of the testator in partnership of plaintiff and testator for the sum of $100 to be paid to the testator's estate. After the death of the testator and the appointment of defendant as executrix, a tender was duly made by the plaintiff and rejected.
The Supreme Court, Special Term, Westchester County, Leonard J. Supple, J., entered judgment in favor of the plaintiff, and the defendant appealed.
The Appellate Division, 26 A.D.2d 687, 272 N.Y.S.2d 1010, by a divided court dismissed the complaint without prejudice, and the plaintiff appealed.
The Court of Appeals, 19 N.Y.2d 899, 281 N.Y.S.2d 91, 227 N.E.2d 889, reversed.
On remittitur the Appellate Division, 29 A.D.2d 653, 287 N.Y.S.2d 451, affirmed the judgment of the Special Term and held that the agreement was valid and enforceable, was not testamentary in character, and was not in violation of the Decedent Estate Law, Consol.Laws, c. 13, § 21.
The defendant appealed to the Court of Appeals, contending that option agreements were in attempt by the testator to make a testamentary disposition and were violative of the Decedent Estate Law, § 21, and that the option agreements were so indefinite as to be invalid and unenforceable, and that plaintiff did not exercise her option within a reasonable time, and that the order of the Appellate Division should be reversed and complaint should be dismissed, except that judgment should also be issued decreeing that plaintiff be required to account to defendant as alleged in defendant's counterclaim.
Order affirmed, with costs.
All concur.
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...re Estate of Dillon, 575 P.2d 127 (Okla.App.1977); Gabay v. Rosenberg, 29 A.D.2d 653, 287 N.Y.S.2d 451 (1968), aff'd 23 N.Y.2d 747, 296 N.Y.S.2d 795, 244 N.E.2d 267 (1968) (upholding a nominal purchase price of $100 where the partnership owned two parcels of improved land); In re Randall's ......
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...for lv. to app. den., 285 App.Div. 1049, 141 N.Y.S.2d 501; Gabay v. Rosenberg, 29 A.D.2d 653, 287 N.Y.S.2d 451, affd. 23 N.Y.2d 747, 296 N.Y.S.2d 795, 244 N.E.2d 267). Matter of Riefberg, 58 N.Y.2d 134, 459 N.Y.S.2d 739, 446 N.E.2d 424 (1983) is not to the contrary. That case simply holds t......
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