Katz v. Henig

32 Misc. 672, 66 N.Y.S. 530

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 15, 1900
• Status: Published

Opinion

Giegerich, J.

The action is by a purchaser against the vendors of leasehold premises to recover damages claimed in consequence of the latters’ breach of contract to convey a good title. According to the bill of particulars, reimbursement is sought for such part of the purchase money as has been paid, with interest, expenses of examining the title, and, in addition thereto, damages consequent upon the loss of the bargain. The court below dismissed the complaint upon the ground that the action was of equitable cognizance, and hence not within its statutory jurisdiction.

The remarks of the court in Matthews v. Matthews, 133 N. Y. 682, and in Cooley v. Lobdell, 153 id. 603, to the effect that an .action to recover damages in lieu of specific performance lies not at law, but in equity, and that such damages cannot be awarded until the plaintiff’s right to specific performance has been established, are cited in support of such ruling. It will be seen, however, upon a reading of these cases, that such remarks relate solely to the remedy of a purchaser in equity, where the vendor is unable to convey a good title, i. e., specific performance, or damages in lieu thereof, if specific execution cannot be decreed. But the purchaser is not restricted to this remedy. He may bring an action at law to recover damages for a breach of the vendor’s express or implied contract to convey a good title, and damages such as are sought by this very action, may, under certain circumstances, be thus recovered. Brown v. Haff, 5 Paige, 234; Margraf v. Muir, 57 N. Y. 155; Cuff v. Dorland, id. 563; Smyth v. Sturges, 108 id. 495; Northridge v. Moore, 118 id. 419; Walton v. Meeks, 120 id. 79; Zorn v. McParland, 11 Misc. Rep. 555; affd., 155 N. Y. 684; Sug. Vend. & P. 289; Hilliard Vend. 439, 518; Adams Eq. 83; Ger. Tit. (4th ed.) 488; Maupin Mark. Tit. 13, 209. These remedies are essentially distinct and independent (Peters v. Delaplaine, 49 N. Y. 362, 372; Smyth v. Sturges, supra, 503; Zorn v. McParland, supra, 557; Maupin Mark Tit. 13), although pecuniary compensation may be the result attained in each. Hilliard Vend. 518. The present action, as I gather from the record, is one for damages, and not for specific performance. Such being the case, the court below unquestionably had jurisdiction of the action (Greater New York Charter, Laws of 1897, chap. 378; § 1364; Langb. Mun. Ct. Pr. [4th ed.] 34), and, therefore, it erred in dismissing the complaint.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.

Beekman, P. J., and O’Gorman, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.