94 N.Y.S. 235 | N.Y. App. Div. | 1905
On the 25th day of March, 1903, the defendants, as executors and trustees under the last will and testament of William F. Buckley, deceased, executed a contract whereby they agreed to convey to the plaintiff a certain plot of land on the westerly side of Amsterdam avenue, between One Hundred and Fifty-seventh and One Hundred and Fifty-eighth streets, in the city of New York, for the sum of $140,000, of which $5,000 was paid upon the execution of the agreement, and at the same time the defendant Charles R. Buckley and John D. Buckley, individually, executed an agreement to convey to the plaintiff two other pieces of land, one upon the easterly side of the Boulevard, between One Hundred and Fifty-seventh and One Hundred and Fifty-eighth streets," and the other, containing twelve lots, located on One Hundred and Fifty-seventh and One Hundred and Fifty-eighth streets, between the Boulevard and
On October first, the date to which the closing of the title to
Evidence was given tending to show that the actual transaction was a sale of all three pieces of property as one transaction, and that two contracts were made because of the fact that parcel No. 1 was owned by the defendants as executors, while parcels Nos. 2 and 3 were owned by the vendors individually; but when these contracts were finally executed nothing was said about there being any understanding that the sale of these separate parcels depended upon a marketable title being given to all three of the parcels. The defendants denied making any such agreement as claimed by the plaintiff or that the two contracts were in any way dependent upon each other. The trial court found against the plaintiff; that the contracts could not be reformed, and thereupon directed judgment dismissing the complaint.
The court in dismissing the complaint, however, directed that the judgment should be without prejudice to anew suit to recover from the defendants the $5,000 and the expense of examining the title upon the ground that the defendants had failed to tender a marketable title to the property. The action having been treated by both parties as an action in equity for equitable relief which was based upon a mistake in not inserting in the contract the actual understanding
Upon the trial the plaintiff also stated that, in the event that the court should refuse to award the relief asked for in the complaint, the plaintiff would ask to have the contract specifically enforced so that she could complete the contract, and she now claims that she was entitled to such a judgment. There is no such claim, however, made in the complaint. The allegation is that the defendants were unable to give a good and marketable title to the property. The plaintiff has stood upon that position ever since the day on which the contract was to be performed. No issue was presented by the pleadings as to whether or not the plaintiff was entitled to a decree of specific performance; but, on the contrary, the complaint„alleges that the title of the defendants to the premises is not marketable, and that for that reason the plaintiff was entitled to recover back the amount that she had paid upon the execution of the contract. To decree a specific performance of a contract for the conveyance of real property in an action which is entirely based upon an allegation that the vendor’s title to the property is not marketable would be changing the cause of action and granting relief to which upon the allegations of the complaint the plaintiff was not entitled. We would not, therefore, be justified in reversing the judgment to allow the plaintiff to obtain relief to which she was not entitled upon the facts alleged in the complaint and for which she made no demand for judgment. In view of the findings of the trial court, which, I think, are sustained by the evidence, I do not think the plaintiff was entitled to any relief, and that the judgment appealed from must, therefore, be affirmed, with costs. The judgment entered upon this appeal, however, is not to be a bar to an action by the plaintiff, either for a specific performance of the contract, or for a recovery at law of the amount paid, by the plaintiff upon the execution of the contract, with the disbursements for examining the title.
O’Brien, McLaughlin and Hatch, JJ., concurred.
Judgment affirmed, w a costs.