Supreme Court, Appellate Division, Second Department, New York.
Mary LAMBIASI, Respondent,
v.
HOME TITLE GUARANTY COMPANY, Appellant.
Nov. 19, 1962.
Action to recover damages for alleged breach of escrow agreement. The
Municipal Court of the City of New York denied defendant's motion for summary
judgment and for judgment on pleadings, and defendant appealed. The Supreme
Court, Appellate Term, affirmed the order, and defendant appealed by permission.
The Supreme Court, Appellate Division, held that seller who had executed escrow
agreement in presence of attorney, with provision that escrowee should satisfy
lien with money on deposit with it if lien had not been disposed of by certain
date, could not recover from escrowee for breach of escrow on basis of purported
oral assurance that money on deposit would be returned to seller in event it
should be determined that seller was not required to satisfy lien.
Order reversed and complaint dismissed.
West Headnotes
Deposits and Escrows 24.1
122Ak24.1 Most Cited Cases
(Formerly 122Ak24, 153k14(1) Escrows)
Seller who had executed escrow agreement in presence of attorney, with provision
that escrowee should satisfy lien with money on deposit with it if lien had not
been disposed of by certain date, could not recover from escrowee for breach of
escrow on basis of purported oral assurance that money on deposit would be
returned to seller in event it should be determined that seller was not required
to satisfy lien. Rules of Civil Practice, rules 112, 113.
**236 Dreyer & Traub, Brooklyn, for appellant; Samuel Kirschenbaum, Brooklyn,
of counsel.
Andrew F. Modica, Brooklyn, for respondent (John F. DeLucie, Brooklyn, of
counsel).
Before BELDOCK P. J., and UGHETTA, BRENNAN, HILL and HOPKINS, JJ.
MEMORANDUM BY THE COURT.
*977 In an action to recover damages for the defendant's alleged breach of an
escrow agreement, the defendant (escrowee), by permission of the Appellate Term
of the Supreme Court, appeals from an order of that court, dated December 8,
1961, which unanimously affirmed an order of the Municipal Court of the City of
New York, dated July 12, 1961, denying defendant's motion for summary judgment
dismissing the complaint and for judgment on the pleadings (Rules of Civil
Practice, rules 112, 113).
Order of the Appellate Term and order of the Municipal Court reversed on the
law and on the facts, with ten dollars costs and disbursements, and defendant's
motion granted to the extent of awarding summary judgment to it dismissing the
complaint.
Plaintiff, who executed the escrow agreement in the presence of her attorney,
cannot be heard to invoke a purported oral assurance that the money on deposit
with the defendant would be returned to her in the event it should be determined
that she (as the seller) was not required to satisfy the lien. That was a
matter between the parties to the contract of sale. The authorization,
contained in the escrow agreement, to the effect that defendant should satisfy
the lien with the money on deposit with it if the lien had not been disposed of
by February 14, 1960, is consonant with the said purported oral assurance.
234 N.Y.S.2d 235, 17 A.D.2d 977
END OF DOCUMENT
Supreme Court, Appellate Division, Second Department, New York.Mary LAMBIASI, Respondent,v.HOME TITLE GUARANTY COMPANY, Appellant.
Nov. 19, 1962.
Action to recover damages for alleged breach of escrow agreement. The Municipal Court of the City of New York denied defendant's motion for summary judgment and for judgment on pleadings, and defendant appealed. The Supreme Court, Appellate Term, affirmed the order, and defendant appealed by permission. The Supreme Court, Appellate Division, held that seller who had executed escrow agreement in presence of attorney, with provision that escrowee should satisfy lien with money on deposit with it if lien had not been disposed of by certain date, could not recover from escrowee for breach of escrow on basis of purported oral assurance that money on deposit would be returned to seller in event it should be determined that seller was not required to satisfy lien.
Order reversed and complaint dismissed.
West Headnotes
Deposits and Escrows 24.1122Ak24.1 Most Cited Cases (Formerly 122Ak24, 153k14(1) Escrows)
Seller who had executed escrow agreement in presence of attorney, with provision that escrowee should satisfy lien with money on deposit with it if lien had not been disposed of by certain date, could not recover from escrowee for breach of escrow on basis of purported oral assurance that money on deposit would be returned to seller in event it should be determined that seller was not required to satisfy lien. Rules of Civil Practice, rules 112, 113. **236 Dreyer & Traub, Brooklyn, for appellant; Samuel Kirschenbaum, Brooklyn, of counsel.
Andrew F. Modica, Brooklyn, for respondent (John F. DeLucie, Brooklyn, of counsel).
Before BELDOCK P. J., and UGHETTA, BRENNAN, HILL and HOPKINS, JJ.
MEMORANDUM BY THE COURT.
*977 In an action to recover damages for the defendant's alleged breach of an escrow agreement, the defendant (escrowee), by permission of the Appellate Term of the Supreme Court, appeals from an order of that court, dated December 8, 1961, which unanimously affirmed an order of the Municipal Court of the City of New York, dated July 12, 1961, denying defendant's motion for summary judgment dismissing the complaint and for judgment on the pleadings (Rules of Civil Practice, rules 112, 113).
Order of the Appellate Term and order of the Municipal Court reversed on the law and on the facts, with ten dollars costs and disbursements, and defendant's motion granted to the extent of awarding summary judgment to it dismissing the complaint.
Plaintiff, who executed the escrow agreement in the presence of her attorney, cannot be heard to invoke a purported oral assurance that the money on deposit with the defendant would be returned to her in the event it should be determined that she (as the seller) was not required to satisfy the lien. That was a matter between the parties to the contract of sale. The authorization, contained in the escrow agreement, to the effect that defendant should satisfy the lien with the money on deposit with it if the lien had not been disposed of by February 14, 1960, is consonant with the said purported oral assurance.
234 N.Y.S.2d 235, 17 A.D.2d 977
END OF DOCUMENT