Weiss v. Garfield

• Decision Date: 12 May 1964
• Citation: 249 N.Y.S.2d 458,21 A.D.2d 156
• Parties: Isidor WEISS, Plaintiff-Respondent, v. Oliver GARFIELD and Nancy Garfield, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 458

249 N.Y.S.2d 458

21 A.D.2d 156

Isidor WEISS, Plaintiff-Respondent, v. Oliver GARFIELD and Nancy Garfield, Defendants-Appellants.

Supreme Court, Appellate Division, Third Department.

May 12, 1964.

Gustave B. Garfield, New York City, for defendant-appellants.

Samuel H. Stuttman, Far Rockaway, L. I., for plaintiff-respondent.

Before GIBSON, P. J., and REYNOLDS, TAYLOR, AULISI and HAMM, JJ.

HAMM, Justice.

Special Term denied the defendants' motion for summary judgment.

The plaintiff on March 18, 1960, entered into a contract with the defendant Oliver Garfield for the sale of land consisting of three parcels. The third parcel was described in the contract as follows:

'ALSO all that tract or parcel of land, situate in the Town of Cochecton, County of Sullivan, and State of New York, taken from Lot No. 8, in Division 63, Great Lot 18, Hardenburgh Patent.

'Beginning at a stake and stones in the line of Lots 5, and 8; thence by Lot No. 5, South 10 West 11 chains and 8.8 links to a stake and stones; thence by the remainder of the Lot North 76 1/2 West 23 chains to a hemlock tree by a birch tree; thence by Lot No. 11, with 10 with 10 chains 88 links to stake and stones; from thence South 76 1/2 East 23 chains to palce of beginning, containing acres, be the same, more or less.'

The contract recited 'This sale includes all the buildings and improvements now upon the premises in their present condition, together with the items of furniture, fixtures and equipment enumerated and set forth in the schedule annexed hereto and made a part hereof.' On April 22, 1960, the plaintiff conveyed by a full covenant and warranty deed to the defendants Oliver Garfield and Nancy Garfield the three parcels and the deed described the last parcel precisely as in the contract. The defendant Oliver Garfield employed an abstract company to search the title and the company certified that title to the three parcels was in the plaintiff and the plaintiff executed an affidavit of title initialed by his attorney in which he stated: 'This affidavit is made to induce OLIVER GARFIELD and NANCY GARFIELD to take a deed executed by deponent.

The plaintiff asked for reformation alleging in his complaint that the plaintiff 'never intended to sell and defendants never intended to buy any property not contiguous to what was actually shown and represented to be owned by the plaintiff'; he seeks exclusion of the third parcel including the warranties relating to it.

Subdivision 1 of section 457-a of the Civil Practice Act provided: 'The court may direct a verdict when it would be required to set aside a contrary verdict for legal insufficiency of evidence.' In pursuance of this section it has been held that even if a court would under the circumstances of the case, on a trial, set aside a verdict as contrary to the weight of evidence, it would nevertheless not be justified in granting summary judgment and that summary judgment is authorized only where, if the same facts which appear in the moving and opposing papers were adduced upon the trial, the court would be warranted in directing a verdict. Rule 4401 of the Civil Practice Law and Rules provides: 'Any party may move for judgment with respect to a cause of action or issue upon the ground that the moving party is entitled to judgment as a matter of law, after the close of the evidence presented by an opposing party with respect to such cause of action or issue, or at any time on the basis of admissions.' In 4 Weinstein-Korn-Miller, New York Civil Practice, p4401.13, the authors state: 'CPLR 4401 sets no standards for the trial court to use in decising whether or not to grant the motion for judgment. Experience in New York has shown that attempts to give the courts legislative guidance have confused the issue. CPLR 4401 omits the provision in subdivision 1 of section 457-a of the Civil Practice Act: 'The court may direct a verdict when it would be required to set aside a contrary verdict for legal insufficiency.' Rather than formulating criteria for the direction of a verdict, this subdivision merely stated that the standard for directing a verdict was the same as for judgment notwithstanding the verdict. Since no standard was set for the granting of the latter motion, and it was merely a renewal of the former, the statement in section 457-a gave no guidance on when the court should decide the case and when it should leave it to the jury. Omission of the former provision is intended to...