Steinberg v. Singer
| Decision Date | 28 January 1957 |
| Citation | 5 Misc.2d 278,163 N.Y.S.2d 774 |
| Parties | Sylvia STEINBERG, Plaintiff, v. Roslyn G. SINGER, Defendant. |
| Court | New York Supreme Court |
Elliott Lasker, New York City, for plaintiff.
Abraham Sobel, New York City, for defendant.
Motion by plaintiff for an order striking out defendant's answer as sham and frivolous, striking out defenses and counterclaims on the ground that they do not state facts sufficient to state a cause of action and that the defenses constituting new matter are insufficient at law, that the defenses are not such as may be properly interposed and are unenforcible under the Statute of Frauds, and for judgment.
The action is for partition of real property owned by the plaintiff and defendant as tenants in common. Defendant admits the allegations of the complaint and alleges as a first, separate and distince defense that the parties agreed not to sell the premises to anyone except each other or institute any proceeding for the sale of the property, that either party might demand that the other purchase same and that the purchase price should be the amount originally paid on account of such purchase price, that plaintiff vacated the premises and demanded that defendant purchase her interest, that defendant tendered the amount paid by plaintiff on account of the purchase price but that plaintiff refused to accept such sum and has refused to execute a deed to defendant. Defendant also alleges, as a counterclaim, that defendant has advanced various sums of money on account of principal and interest on the mortgage on the property and for taxes, improvements and repairs and that defendant is entitled to reimbursement therefor. Plaintiff's reply sets up the defense of the Statute of Frauds and the further defense that the counterclaim is insufficient at law.
When a tenant in common by agreement relinquishes the right to bring partition, he surrenders to the other tenants a valuable vested interest in his ownership of the property. The surrender of an interest in real property is required to be in writing under the Statute of Frauds (Sec. 242, Real Property Law). In addition, the whole alleged agreement was made prior to the execution of the deed under which the parties held. All prior agreements relating to title and ownership are presumed to be merged in the written instrument. To establish the alleged agreement would require the reception of parol evidence to vary the terms...
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Hartburg v. Bullock
...an accounting and determination of equitable rights in the proceeds before entry of interlocutory or final judgment. Steinberg v. Singer, 5 Misc.2d 278, 163 N.Y.S.2d 774; Zaveloff v. Zaveloff, Sup., 37 N.Y.S.2d 46, 52, and cases therein cited. This partial defense is therefore also dismisse......
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Yeshiva University v. Edelman
...258, 185 N.Y.S. 139). The fact that such agreement might be required to be in writing under the statute of frauds (see Steinberg v. Singer, 5 Misc.2d 278, 163 N.Y.S.2d 774) does not warrant a determination that the second defense in the instant case is legally insufficient. It nowhere appea......
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Prario v. Novo
...of frauds. General Obligations Law § 5-703(1); Smith v. Smith, 214 App.Div. 383, 212 N.Y.S. 196 (3rd Dep't 1925); Steinberg v. Singer, 5 Misc.2d 278, 163 N.Y.S.2d 774 (Supreme Ct. Kings 1957); Casolo v. Nardella, 193 Misc. 378, 84 N.Y.S.2d 178 (Supreme Ct. Saratoga 1948), aff'd, 275 App.Div......
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Goldberg v. Goldberg
...action, the Statute of Frauds requires the surrender of that interest in real property to be in writing (see, Steinberg v. Singer, 5 Misc.2d 278, 163 N.Y.S.2d 774). The defendant's conduct in paying the real estate taxes and the mortgage payments cannot be interpreted as destroying the plai......