Sam Genevetz, Appellant, v. Jennie Feiering and Others, Respondents

Sam Genevetz, Appellant, v. Jennie Feiering and Others, Respondents. Second Department, March 4, 1910. Beal property—vendor and purchaser — suit for specific performance by assignee of vendee'—failure to assume obligations of vendee. The assignee of a contract to sell lands who did not assume his ■ assignor’s obligation to purchase, cannot maintain a suit- against the vendor for specific performance. Appeal, by the plaintiff, Sam Genevetz, from a judgment of the Supreme Court in favor of'the defendants, entered in the office of the clerk of the county of Kings on the 1st day of July, 1909, upon the decision of the court,-rendered after a trial at the Kings C-ounty Special Term, dismissing the complaint upon the merits. Isaac Miller, for the appellant. Jacob I. Berman \_Ceorge Tonkonogy and Isidor Cohn with him on the brief], for the respondents. [MAJORITY — Thomas, J.:] Thomas, J.: The vendees in an action for the sale of real estate assigned the contract to the plaintiff, who brought an action for specific per: formalice, uniting as defendants Feiering,'the vendor; Friedman, the purchaser from Feiering; Fromson, a purchaser from Friedman, and McGuire, a purchaser-of part of the property from Fromsori. The court found that the complaint should be dismissed as to Fromson, McGuire and Friedman, and that no cause of. action in equity was established as to any other defendants, and that the plaintiff have an order placing the case as to Feiering upon the calendar for the trial of issues by jury. The judgment embodies the finding,--except as to the permission -for a jury trial as regards Feiering. The appeal is from' the judgment only. It was found “That there was no assumption on the part of the plaintiff herein of the obligation to purchase the real property described in the complaint.” The evidence is not returned. As there is no evidence or finding that the assignee assumed any personal liability for the performance of the contract, he cannot maintain this action. (Hugel v. Habel, 132 App. Div. 327.) There is an entire absence of mutuality between the assignee and the vendor, which precludes the relief plaintiff seeks. ( Wadick v. Mace, 191 N. Y. 1.) The- judgment should be affirmed, with costs. Jenks, Rube, Rich and Cabe, JJ., concurred. . Judgment affirmed, with costs. x