93 N.Y.S. 1097 | N.Y. Sup. Ct. | 1905
The plaintiff, the assignee of a contract for the sale of real estate, sues the defendant, the vendor, to recover the deposits paid and expenses for searching the title,
The contract provides: “ The stipulations aforesaid are to apply to and bind the heirs, executors, administrators and assigns of the respective parties,” and while it may be assumed that the vendee and the assignee respectively made and accepted the assignment with knowledge of this provision, the promise of the vendee still was not transferred to the assignee without a novation and there could be no novation until the vendor accepted the assignee in the vendee’s place, discharging the latter from his promise, by the very force of the assignment. Ryan v. Pistone, 89 Hun, 78. The assent of the vendor, however, is not indicated by anything, so far as alleged, beyond the bare fact of her knowledge of the clause of the contract above quoted, but this clause does not import a discharge of the vendee in any sense; at best it suggested an additional liability founded upon the assignee’s willingness to answer for the debt of another (his assignor), yet the acceptance of the assignment by the assignee did not suffice to turn this willingness into an obligation available to the vendor, because there was no promise in writing. Suydam v. Dunton, 84 Hun, 506. Had the vendor released the vendee and availed herself of the assignee’s willingness to be bound, there would have been a novation, but there was no release, and the present assertion of a claim against the assignee does not supply the omission. Ryan v. Pistone, supra. Thus the presence of the clause referred to, in the assigned contract, does not alter the relations of the parties as indicated by the matters alleged.
The counterclaim cannot succeed as a cause of action for nominal damages, since this plaintiff is not the party in default, nor can a sale of the premises be decreed in furtherance of a remedy against the plaintiff, as is suggested.
If the plaintiff, as assignee of the contract of sale, had come into possession of the premises the court could proceed, in rem, and direct a sale to protect the vendor’s lien, in equity, for the purchase money, as in Champion v. Brown, supra,. In such a situation the assignee’s personal relation to the vendee’s covenants would be immaterial, the proceedings not being in personam, as the court points out in the case cited, but where the vendor remains in possession he has all that he could get by a decree, in an action to which the person liable for a deficiency between the agreed and the selling price of the property is not a party.
There is no escape from the conclusion that the counterclaim is insufficient, and the demurrer is, therefore, sustained, with- costs, with leave to defendant to amend on payment of costs within twenty days.
Demurrer sustained, with costs, with leave to defendant to amend on payment of costs within twenty days.