Kaplan v. Cohen

New York Supreme Court

Kaplan v. Cohen

34 Misc. 91, 68 N.Y.S. 766

DecidedFebruary 15, 1901

StatusPublished

This text of 34 Misc. 91 (Kaplan v. Cohen) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kaplan v. Cohen, 34 Misc. 91, 68 N.Y.S. 766 (N.Y. Super. Ct. 1901).

Pincite

Opinion

Gaynor, J.

The complaint alleges that the defendant entered into a written contract to convey certain real estate to [92]*92the plaintiff, and that he failed to do so on the contract day because he could not give good title. There is also the following allegation: “and in said agreement the defendant acknowledged the payment by the plaintiff of $100 in part payment of said premises.” This is not an allegation of the payment of $100 by the plaintiff to the defendant. ¡Nor is there any allegation that the plaintiff searched the title and incurred expense therein. The prayer for judgment for $167.50 is therefore based on nothing. The Us pendens is filed on the theory that the plaintiff may he given a lien by judgment on the land for the amount he paid on account and of his expenses in searching the title; but as the complaint alleges no such payment or expense there is no cause of action alleged.

The motion is granted, with $10 costs.

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Gaynor, J.

The complaint alleges that the defendant entered into a written contract to convey certain real estate to [92]*92the plaintiff, and that he failed to do so on the contract day because he could not give good title. There is also the following allegation: “and in said agreement the defendant acknowledged the payment by the plaintiff of $100 in part payment of said premises.” This is not an allegation of the payment of $100 by the plaintiff to the defendant. ¡Nor is there any allegation that the plaintiff searched the title and incurred expense therein. The prayer for judgment for $167.50 is therefore based on nothing. The Us pendens is filed on the theory that the plaintiff may he given a lien by judgment on the land for the amount he paid on account and of his expenses in searching the title; but as the complaint alleges no such payment or expense there is no cause of action alleged.

The motion is granted, with $10 costs.

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Bluebook (online)

34 Misc. 91, 68 N.Y.S. 766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaplan-v-cohen-nysupct-1901.