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Day Realty Corp. v. Beach

May 18, 1979

DAY REALTY CORP., PLAINTIFF-APPELLANT,
v.
BEACH, GASPER COMPANY, INC., DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Southern District of New York

Present: Hon. William H. Mulligan, Hon. Milton Pollack,*fn* Hon. Robert L. Carter, * Circuit Judges

This cause came on to be heard on the transcript of record from the United States District Court for the Southern District of New York, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is affirmed essentially for the reasons set forth in the opinion of the District Court Judge, Hon. Charles E. Stewart, Jr., 78 Civ. 1380 (Dec. 21, 1978). We need not determine whether the transcribed tapes satisfy the requirement of a subscribed writing set forth in N.Y.G.O.L. ยง 5-703(2) which demands a contract or some note or memorandum thereof subscribed by the party to be charged in a real property transaction. The evidence adduced demonstrated in any event that material terms of a complex agreement for the sale of valuable commercial property had been left open for future negotiations which were never consummated. There was no contract, therefore, for the purchase and sale of real property. See, e.g., Ansorge v. Kane, 244, N.Y. 395, 398, 155 N.E. 683, 684 (1927); Poel v. Brunswick-Balke-Collender Co., 216 N.Y. 310, 314, 110 N.E. 619, 620 (1915).

Appellant's claim that the district court improperly transformed a Rule 12(b)(6) motion into one under Rule 56 is unavailing. The appellant initiated the change by introducing affidavits and other evidentiary materials obtained by discovery which were outside the pleadings. Moreover, we find no abuse of discretion in the district judge's limiting discovery in view of the breadth and vagueness ...


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