Rubinstein v. Rubinstein

244 N.E.2d 49 (1968)

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Nature of the Case

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Facts

Henry and Leo were distant relatives. They owned and operated a number of joint enterprises but decided in 1965 that they no longer wanted to continue. In July 1965, they decided on parting and entered into a contract through legal counsel. Henry was to get first pick of the assets between the two businesses and whoever took the Kips Bay deli would also get the realty located therein. The agreement established a method for valuing the realty. At the time the agreement was executed, each party deposited $5,000 with their respective lawyers to be used to make payment to the other party upon the closing of the transaction. A default provision called for forfeiture of the $5,000 deposit as liquidated damages. The day after the agreement was executed; Henry elected to take the Kips Deli. Disputes then arose over the details of the transaction, and by October 1965 the transaction still had not been consummated. Henry (P) then sued for specific performance, and so did Leo (D). D than did a complete about-face and moved for leave to serve an amended answer. The court ruled that D clearly did not want to go through with the transaction and the P was entitled to summary judgment but also held that the sole relief that P was entitled to the liquidated damages of $5,000. It’s hard from the casebook to determine just who appealed, but it is assumed that P did.