SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
June 9, 1969
MICHAEL CARPINIELLO, RESPONDENT,
DONATO PROTANO ET AL., APPELLANTS
In an action for specific performance of a contract for the sale of real property, defendants appeal from a judgment of the Supreme Court, Westchester County, dated October 1, 1968, in favor of plaintiff.
Beldock, P. J., Brennan, Benjamin, Munder and Martuscello, JJ., concur.
We have not reached nor do we decide the question whether the attempted oral modification of the contract of sale was valid and enforceable. We agree with the trial court that under the circumstances plaintiff was entitled to a reasonable adjournment in order to procure cash or a mortgage. Defendants cannot be permitted to prevent plaintiff's performance of the original contract by agreeing to its oral modification and, thereafter, insisting upon strict adherence to the original contract, setting up the Statute of Frauds to bar enforcement of the altered contract (cf. Harris v. Shorall, 230 N. Y. 343, 349; Imperator Realty Co. v. Tull, 228 N. Y. 447, 453). Equity will intervene in such a case to protect the purchaser.
Judgment affirmed, with costs; and action remanded to the trial court for the purpose of fixing a new time and place for the closing of title.
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