Rubinstein v. Rubinstein
| Decision Date | 30 November 1967 |
| Citation | 28 A.D.2d 1121,285 N.Y.S.2d 125 |
| Parties | Henry RUBINSTEIN, Plaintiff-Appellant, v. Leo RUBINSTEIN, Defendant-Respondent, |
| Court | New York Supreme Court — Appellate Division |
R. Markewich, New York City, for plaintiff-appellant.
D. Bergner, New York City, for defendant-respondent.
Before STEVENS, J.P., and EAGER, STEUER, CAPOZZOLI and McGIVERN, JJ.
Order entered July 10, 1967, denying plaintiff's cross-motion for summary judgment decreeing specific performance of a written contract and adjudging that, upon payment by the defendant of the sum of $5,000 as liquidated damages, the contract would terminate and the parties be left in statu quo ante, affirmed, with $50 costs and disbursements to respondent.
Properly considered, clause Eight in the contract relating to the $5,000 was nothing more than an option, affording the plaintiff a choice not to go forward, if he was willing to forfeit $5,000. A similar privilege was available to the defendant. The fair and clear intendment was that if either party refused to consummate the subject transaction, $5,000 was to be forfeited by the defaulting party to the other. Such an arrangement is not at odds with authority. Hasbrouck v. Van Winkle, 261 App.Div. 679, 682, 27 N.Y.S.2d 72, 75, aff'd 289 N.Y. 595, 43 N.E.2d 723. See also, 49 Am.Jur., pp. 57--58, § 43, Spec. Perf.; City of New York v. Seely-Taylor Co., 149 App.Div. 98, 133 N.Y.S. 808 (First Dep't 1912), aff'd 208 N.Y. 548, 101 N.E. 1098, and Artstrong Homes, Inc. v. Vasa, 23 Misc.2d 608, 201 N.Y.S.2d 138 (Sup.Ct.1960).
Nor is this a situation that lends itself to an equitable decree in specific performance. There are too many open ends to the contract, which seems to be preliminary in nature, requiring many more specifics before it can be enforced by a decree in equity. Not to be overlooked is that the defendant's new attorney proffered a proposed amended pleading and requested that the cause be removed from the Special Term calendar as an equitable case. All concur except EAGER, J., who concurs in a concurring memorandum and STEVENS, J.P., and STEUER, J., who dissent and vote to reverse in a memorandum by STEVENS, J.P.
I concur in an affirmance of the order solely upon the ground that the provision in the instrument for the forfeiture of the deposit of $5,000 as liquidated damages was intended to limit the responsibility of a party where he 'default(s) or refuse(s) to consummate this transaction'. By their agreement, the parties fixed said sum to cover all damages which might be sustained upon a failure or refusal to perform the agreement. Therefore, the payment thereof should end further responsibility on the part of the defaulting party. Of course, one cannot collect damages in full for a breach of contract from a defaulting party and also enforce the obligations of the contract.
If I were not satisfied that the agreement should be construed as a matter of law to preclude the granting of specific performance, I would remand for a trial for a determination of the intent of the parties and a determination of whether, under all the circumstances, the granting of such remedy would represent an unconscionable action by a court of equity.
STEVENS, Justice Presiding (dissenting):
I dissent, vote to reverse and grant plaintiff's cross motion for summary judgment decreeing specific performance.
Plaintiff and defendant, distant relatives, owned certain properties in equal shares. Because of various differences they decided to separate. July 20, 1965, while each was represented by counsel, they entered into a written agreement by the terms of which plaintiff was given the option of taking one of two stores (the Premium or the Kips Bay Store) each of which, by agreement, had the same value. Defendant was to take the other store.
Paragraph 8 of the Agreement provided:
'Each of the parties hereto shall simultaneously herewith deposit with his respective attorney, the sum of $5,000.00 by check subject to collection, the proceeds of which are to be held in escrow by each respective attorney, to be applied towards the payment that each of the parties may have to make to the other party upon the closing of the above transaction.
'The surplus, if any, shall be returned to the respective parties after determination of the final adjustments at the time of closing.
'In the event that either of the parties hereto shall default or refuse to consummate this transaction, then the aforesaid $5,000.00 deposited by such defaulting party shall be forfeited as liquidated damages and such sum shall be paid by the escrowee thereof to the other party.'
Plaintiff elected to take over the Kips Bay store and on July 21, 1965, notified defendant, in writing, of his election. De...
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