
    Kasper Koppi, Plaintiff, v. Regina Gallagher, Defendant.
    Supreme Court, New York County,
    March 16, 1927.
    
      Basch & Kulkin [Lewis Nadel and Arthur G. Basch of counsel], for the defendant.
   Glennon, J.

The cause of action is based upon a refusal by defendant to sell the property described in the complaint to plaintiff for the sum of $30,000. It is the contention of plaintiff that he is entitled, as a matter of right, to purchase the property from defendant because of the statement to be found in the 19th clause of the lease under which he is in possession of the property as tenant. The language is as follows: “It is understood and agreed that the tenant shall have the first option of purchasing the said premises during the term of this lease for the agreed sum of thirty thousand (30,000) dollars, terms and conditions to be mutually agreed upon.”

Even if the words “ terms and conditions to be" mutually agreed upon ” had not been inserted in the clause, it must be apparent that the owner intended to give to the tenant the right to refuse to purchase the property for $30,000, provided that she desired to sell it. It will be noted that the word first ” qualifies the word “ option.” If it was the intention of the defendant to provide for an absolute option, then what was the purpose of using the word first? ” An additional difficulty is to be found in the provision “ terms and conditions to be mutually agreed upon.” Something was left open for future negotiation.

If we concede that to be so, can we spell out a contract of sale sufficiently complete to overcome the defense of the Statute of Frauds, which was interposed in this case by the defendant? I think not, especially in view of the notice delivered to the husband of defendant, by which it is also shown that terms and conditions remained to be agreed upon between the parties. I am satisfied, also, that the defendant has a truthful version of the facts, and under the circumstances that she is entitled to have judgment entered in her favor.

Findings passed upon. Submit decision and judgment.  