Rubinger v. Rippey
Decision Date | 01 November 1951 |
Citation | 201 Misc. 135 |
Parties | Joshua Rubinger, Appellant,<BR>v.<BR>George Rippey, Respondent. |
Court | New York Supreme Court |
Emanuel Redfield for appellant.
Paul M. Klein and Francis A. Armeny for respondent.
Action on a check which was returned by the bank for insufficient funds. The check of $500 was given as part payment at the time of signing a memorandum for the sale of a house. The memorandum contemplated a more formal contract to be entered into by the parties. The memorandum was signed, the check given to plaintiff on September 30th, a Saturday. On the following Monday the check was returned by plaintiff's bank. On that or the succeeding day, the defendant refused to make an appointment to sign the formal contract. On October 12th this action was instituted to recover the $500. On November 28th the plaintiff conveyed the property to a third person for $16,300 which was $50 more than his agreement with defendant. This action was not tried until April 19th.
It is plaintiff's position that, regardless of the subsequent sale, he is entitled to recover the $500 because it was given as part payment of the purchase price. Defendant relies on failure of consideration and the Statute of Frauds.
It is generally true that where moneys are given as part payment of the purchase price, they may not be recovered by the purchaser if he has breached the contract (Waldman v. Greenberg, 265 App. Div. 827, affd. 289 N.Y. 769; Misam Realty Corp. v. Breslau, 81 N. Y. S. 2d 721). In Graham v. Healy (154 App. Div. 76) the plaintiff sought to set aside a sale of property and recover the down payment made on the purchase price. The court said (p. 82):
In Allis v. Read (45 N.Y. 142, 146) the court said: In that case the purchaser sought to recover a down payment and claimed that the vendor had sold the property and placed himself in a position where he could not perform the contract. The court found however that the sale was made at the instigation and with the authority of the plaintiff.
In the case of Murman v. Manning (125 Misc. 830) an action was brought by the seller on a check given as part payment. The receipt given was not sufficient to satisfy the Statute of Frauds, but that was of no moment since the action was not predicated on the parol contract but on the check. The court stated (p. 831): ...
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Daybreak Const. Specialties, Inc. v. Saghatoleslami
...failure by the injured party to perform his return promise. Restatement (Second) of Contracts § 244 (1981). See Rubinger v. Rippey, 201 Misc. 135, 110 N.Y.S.2d 5 (1951). Thus, where both parties to a contract are in default, there can be no recovery by either against the other. Yale Develop......
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Schubel v. Bernarr Mac Fadden Foundation, Inc.
...what it called the appellant's initial down payment (cf. Cohen v. A. F. A. Realty Corp., 250 N.Y. 262, 165 N.E. 285; Rubinger v. Rippey, 201 Misc. 135, 110 N.Y.S.2d 5). For that reason, the judgment below should not be permitted, by possible operation of the rule of res judicata, to deprive......
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...justified termination by the defendant. See, 6 Williston on Contracts (3rd Edition) § 884-5, pp 403-4; Rubinger v. Rippey, 201 Misc. 135, 110 N.Y.S.2d 5 (App.Term., 1st Dept. 1951). Thus, a right of action for anticipatory breach of a contract is extinguished if it appears after the breach ......
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Knight v. Carter
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