191 Misc. 849 | N.Y. Sup. Ct. | 1948
In an action for the specific performance of a written agreement dated October 18, 1947, for the sale by the plaintiff to the defendant of certain real property described in the complaint, said defendant has interposed in his answer two defenses, the second of which is now challenged by the plaintiff for legal insufficiency.
The defendant, however, seeks to justify the defense in question upon the ground that a motion challenging its legal sufficiency, searches the record and opens the sufficiency of the complaint to attack. (Manson v. Curtis, 233 N. Y. 313, 319; Cavanagh v. Hutcheson, 140 Misc. 178, affd. 236 App. Div. 794.) Undoubtedly, this is so. This court, however, is of the opinion that the complaint is sufficient, as a matter of pleading, notwithstanding its failure to allege tender. The complaint alleges the delivery to the plaintiff by the defendant of a check in the sum of $1,000 as a down payment under the contract; the acceptance, endorsement and deposit thereof by the plaintiff to the credit of his bank account; and that “ the defendant caused payment of said check to be stopped.’’
It is the general rule that where a party to a contract, prior to the time for its performance, repudiates or renounces itj this may be treated by the other party as a complete, anticipatory breach. (Brakarsh v. Brown, 162 Misc. 412; Sussman v. Cutler, 63 N. Y. S. 2d 877.) Surely, the stopping of payment of a check delivered by a purchaser, pursuant to the terms of a contract, as a down payment on account of the purchase price of real property, constitutes the repudiation and renunciation of that contract. (Palmer v. Golden, 127 Misc. 487, affd. on opinion below, 221 App. Div. 360.)
The defendant argues, however, that the plaintiff was unable to perform and that a waiver of tender is applicable only in cases where the plaintiff has the ability to perform. In determining whether a complaint is legally sufficient, the allegations thereof are taken as established facts, without regard to the defenses set up in the answer. (Lipkind v. Ward, 256 App. Div. 74; Staten Island Edison Corp. v. Maltbie, 270 App. Div. 55, affd. 296 N. Y. 374.) The defendant’s position is apparently based upon the first defense not here challenged, wherein it is
Accordingly, plaintiff’s motion to strike out the second defense is granted. There will be no necessity to serve a new answer as the second defense may be marked with reference to the order to be entered hereon, which will be settled’on notice.