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Papaioannou v. Britz

Supreme Court of New York, Appellate Division

April 13, 1955

Papaioannou
v.
Britz

Page 597

APPEAL from a judgment of the Supreme Court in favor of defendant, entered October 25, 1954, in New York County, upon a dismissal of the complaint by the court at a Trial Term (WALTER, J.) at the close of plaintiffs' case.

COUNSEL

Leonard Hemley of counsel (Morris L. Wolf with him on the brief; House, Grossman, Vorhaus & Hemley, attorneys), for appellants.

Jerome I. Hyman of counsel (Louis Gischner with him on the brief; Louis Gischner, attorney), for respondent.

BREITEL, J.

Plaintiffs' complaint was dismissed by the court at the close of their proof, upon a jury trial, on the ground that the written memoranda received in evidence did not satisfy the Statute of Frauds. They appeal.

The action was brought on an alleged oral antenuptial agreement between the prospective bridegroom and the wife's brother, natives of Greece, but residents of New York City. The brother is alleged to have repeated at least some of the promises to his sister, the prospective bride. The marriage took place, and the married couple now sue their brother-in-law and brother, respectively, for breach of his alleged oral promises to provide the married couple in gross $175,000.

The bride, who had never been married, was approaching forty years of age. The bridegroom was about fifty, trained as a physician in Europe, but waiting to be licensed in this State. Before the couple met, the defendant brother met the prospective bridegroom through an intermediary, a mutual friend and editor of a Greek language newspaper. The defendant brother is supposed to have said: 'Doctor, I arranged everything to

Page 598

meet my sister, and if you marry my sister I will give you $100,000, medical establishment, home * * * For your office, your home, the medical instruments, I will give you $75,000.'This was in the summer of 1948. Thereafter the couple-to-be met, had a number of dinners together, and soon the acquaintanceship ripened into an engagement to marry. On the night of November 4th of the same year, the defendant brother is again supposed to have said to his sister's affianced: 'Doctor, last night I saw my sister. She told everything about my promises, and it isn't necessary to worry because I arranged everything. It isn't necessary to worry, doctor. I tell you I will give you $100,000, and I will give you $75,000 for your medical establishment, so it isn't necessary to worry.'

There were further confirmatory conversations, it was testified, on the day of the civil marriage ceremony, and again, before the church marriage ceremony. In each, the promises were repeated, and the sums of money, and their purposes, were again repeated.

The alleged promises were never kept. Two years passed, and each time that the defendant brother was pressed to perform his word, the now-married couple were put off with excuses based on business or family necessities.

In 1950, the defendant brother was in Greece and there was an exchange of correspondence between him and plaintiffs, his sister and his brother-in-law. The letters are replete with information and concern about conditions generally in Greece, the condition specifically of the family in Greece, and about the business and financial contretemps of the brother. There are many touching and affectionate exchanges of personal concern and interest.

Mingled in this correspondence, however, are detailed references to the defendant brother's antenuptial oral promises, set forth by the brother-in-law in his letters. In his responses to these letters, the defendant brother repeatedly, but in the most general terms, assures his brother-in-law and his sister that the promises will be kept. He asks only for the trust and confidence to which he is ...


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