SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
December 20, 1968
EDWARD DAMORETCKI, RESPONDENT,
LUCY LABARGE, APPELLANT
Appeal from an order of the County Court of Saratoga County, entered April 7, 1967, in Saratoga County, which granted a motion by plaintiff for summary judgment.
Aulisi, J. Gibson, P. J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Aulisi, J.
This action is to compel the specific performance of an alleged contract to sell some 13 acres of land owned by the defendant and located in the Town of Clifton Park, Saratoga County. The handwritten contract relied upon, which was prepared by the plaintiff, begins with the following language: "Fifty dollars deposit on parcel of land described below and balance of $2,200 due upon closing of deal with lawyer. Total price is $2,250. Present owner Mrs. L. LaBarge buyer is E. Damoretcki." This is followed by a paragraph describing the property involved by general boundaries and the notation "Acreage to be determined by surveyor". According to the plaintiff, a survey prepared from this description showed that the parcel contained 13 acres, more or less. Defendant denies that she signed the contract in its present form, alleging that at the time she signed it, the document did not contain the paragraph describing the property and that as conceded by plaintiff it does not appear in the signed agreement that the defendant's residence and a small surrounding parcel was to be excluded from the sale. She further contends that the agreement between the parties was to sell only five acres of land and that the northerly boundary line of the premises intended to be sold was erroneously located. In our opinion, the affidavit submitted by the defendant, in opposition to the motion, raised valid triable issues of fact with respect to defendant's contentions, thereby precluding the granting of summary judgment relief.
Order reversed, on the law and the facts, and motion denied, with costs.
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