Beamish v. Beamish

• Decision Date: 24 April 1992
• Citation: 182 A.D.2d 1090,582 N.Y.S.2d 588
• Parties: William BEAMISH, Appellant, v. Shirley BEAMISH, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 588

582 N.Y.S.2d 588

182 A.D.2d 1090

William BEAMISH, Appellant, v. Shirley BEAMISH, Respondent.

Supreme Court, Appellate Division,

Fourth Department.

April 24, 1992.

Lotempio & Brown, P.C., by Frank Lotempio, Jr., Buffalo, for appellant.

Randy H. Gugino, Amherst, for respondent.

Before BOOMER, J.P., and PINE, LAWTON, BOEHM and DAVIS, JJ.

MEMORANDUM:

The Judicial Hearing Officer determined that the parties intended to divide plaintiff's pension as part of their overall divorce settlement, pursuant to the Majauskas formula (see, Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699, 463 N.E.2d 15), but that they inadvertently failed to include it in their January 9, 1986 stipulation. We see no reason to disturb that finding (see, Matter of Liccione v. John H., 65 N.Y.2d 826, 493 N.Y.S.2d 121, 482 N.E.2d 917; De Luke v. State of New York, 169 A.D.2d 916, 564 N.Y.S.2d 635). The Judicial Hearing Officer erred, however, in awarding a money judgment to defendant. Plaintiff fully performed his obligations under the stipulation of December 16, 1986. He was required only to execute a quitclaim deed, not to guarantee title, and to convey whatever interest he had. Both parties were aware not only of plaintiff's pending bankruptcy proceeding, but also that it created a real risk to plaintiff's title. That the conveyance might be invalidated was clearly contemplated in their agreement. Plaintiff performed as required under the stipulation and such performance, although unsuccessful, constituted sufficient consideration (see, 1 Williston, Contracts § 137 [3d ed]; see also, Benward v. Automobile Ins. Co., 60 F.Supp. 995, affd. 2 Cir., 155 F.2d 521). We, therefore, modify the order and judgment to delete the first paragraph thereof, and otherwise affirm.

Order and judgment unanimously modified on the law and as modified affirmed without costs.