FLAX v. B.M. DEVELOPMENT CORP

In an action by the purchasers for specific performance of a contract to sell real property, the parties cross-appeal from an order of the Supreme Court, Suffolk County, dated February 26, 1970, which, on reargument, adhered to the original decision (1) granting defendants' motion for summary judgment dismissing the complaint, (2) canceling plaintiffs' lis pendens and (3) dismissing defendants' counterclaim. The order was resettled by an order of the same court dated May 6, 1970, which this court has reviewed (CPLR 5517, subd. [b]). Plaintiffs' brief has limited their appeal to so much of the order on resettlement as dismissed the complaint; and defendants' brief states that their appeal may be deemed abandoned. Appeal by defendants dismissed as abandoned. Appeal by plaintiffs from order dated February 26, 1970 dismissed as academic. That order was superseded by the order of May 26, 1970 which granted plaintiffs' motion for resettlement. Order dated May 26, 1970 reversed insofar as appealed from by plaintiffs; accordingly, the decretal paragraph which directs dismissal of plaintiffs' complaint is stricken; and defendants' motion for summary judgment is denied. Plaintiffs are allowed one bill of $10 costs and disbursements to cover all the dispositions herein. The April 5, 1969 document expressly refers to the map. The two papers may be read together for the purpose of determining compliance with the Statute of Frauds ( Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48). On the facts presented, whether Benjamin Lehrer signed as president of the corporation or in his individual capacity is an issue of fact to be determined on trial ( Archbold v. Industrial Land Co., 264 Mich. 289; E. Errett Smith, Inc. v. Gibson Art Co., 15 Misc.2d 504; Hall v. Ochs, 34 App. Div. 103; Langstroth v. Turner Cypress Lbr. Co., 162 App. Div. 818, affd. 220 N.Y. 706). As president of the corporation, Lehrer was not an agent with respect to the Statute of Frauds' requirement that the agent be authorized in writing (see Hasenfrantz v. Berger Apts. 61 N.Y.S.2d 12). There are also issues of fact as to whether defendants are estopped from pleading the Statute of Frauds ( Joehl v. Tricarico, 271 App. Div. 898, mot. for lv. to app. den. 271 App. Div. 984; Levy v. Rothfeld, 271 App. Div. 973). It cannot be said as a matter of law that the memorandum was insufficient to hold defendants or that it was canceled ( Kroll v. Zimmerman, 88 N.Y.S.2d 440, app. dsmd. 91 N.Y.S.2d 751; 276 App. Div. 1098). Christ, P.J., Hopkins, Martuscello, Latham and Benjamin, JJ., concur.