123 N.Y.S. 906 | N.Y. App. Div. | 1910
This is a suit in equity to rescind an executed contract for the sale of land by the defendants to the plaintiff and to recover the consideration paid on account of - false representations affecting the location and value of the premises, which are in the county of Suffolk. The defendants demanded that the place of trial be changed to the county of Suffolk on the ground that it is the proper county for the trial of the issues by virtue of the provisions of section 982 of the Code of Civil • Procedure, which •provides as follows r “ Each of the following . actions must be tried in the county in which the subject of the action Or' some part thereof is situated: an action of ejectment; for the partition of real . property ; for dower; to foreclose a mortgage upon real property, or .upon a chattel real; to compel the determination ,of a claim to
It is contended in behalf of the respondent that the sole object of the action is to recover the consideration paid, and that the title . to the land will be affected only incidentally and that, therefore, the case does not fall within the provisions of the statute quoted. Ho case precisely in point is cited by counsel for either party. The respondent relies on Ely v. Lowenstein, No. 2 (9 Abb. Pr. [N. S.] 42), in which it was held at Special Term that an action to rescind a contract for the purchase of land on the ground of fraud did not. fall within the corresponding provisions of section 123 of the Code of Procedure, but that case involved only the validity of the contract which.had not been consummated by the execution of a conveyance of the premises. The cases of Hogg v. Mack (53 Hun, 463); Barnes v. Barnhart (102 App. Div. 424), and Maier v. Rebstock (68 id. 481) are'also cited in support of the order. Hogg v. Mack (supra) was an action at law to recover the down payment and expenses incurred in the examination of the title to premises which the defendant agreed to convey to the plaintiff. The question presented for decision was whether the title was defective. ■The judgment demanded would not affect a change in the title, and it was held that the case did not fall within this section. The court in that case say that it is not sufficient to bring the case within the . provisions of the section quoted that a question relating to the title of real estate may have to be passed upon in the suit;.that the action must be brought' “ to recover an estate, right, title, lien or other interest in real property or a chattel real,” or “ to procure a judgment affecting such an estate, right, title, lien or other interest ; ” that a judgment for money only would not be such a recovery, and that a judgment affecting such an estate or interest as is . therein referred to is one in an action “ in which the judgment which is sought is one that by its very terms, or by reason of its
It follows that the order should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.
Ingraham, JP. J., McLaughlin, Scott and Dowling, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.