97 Misc. 707 | N.Y. App. Term. | 1916
The appellant and respondent entered into a contract on the 18th day of November, 1915, for the sale of certain premises in the borough of Brooklyn. The date fixed in said contract for the closing of title was January 3, 1916. Upon the 21st of December, 1915, the appellant’s attorney wrote to the respondent company informing it that a deed in the respondent’s chain of title contained an erroneous description, so that it conveyed twenty feet less than it was apparently intended to convey. The respondent upon receiving this letter decided that it would be necessary to secure a correction deed. Upon the date set for closing, the closing was adjourned to January 17, 1916. On January seventeenth, the correction deed had not been procured and the closing was again adjourned to February first to permit the defendant-respondent to procure the necessary correction deed. On February 1, 1916, the purchaser, the appellant herein, appeared at the time and place fixed for the closing, tendered the balance of the purchase price provided for- in the contract, and demanded a deed of the premises. This deed was not delivered — the defendant-respondent asking for further time in which to secure the correction, deed, but the plaintiff-appellant refused to grant the same. The correction deed was obtained February ninth and on February tenth the defendant company wrote to the plaintiff-appellant informing her of this fact and offering- to complete the sale. This action was then brought to re
The court below has awarded judgment in favor of the defendant, on the merits, with costs. I am of the opinion that the facts pleaded cannot be set up as a defense in the Municipal Court, nor, in fact, as a defense in any court. Equitable defenses may be set up in the Municipal Court, notwithstanding it is not a court of equitable jurisdiction. Alexander v. Vidootzky, 49 Misc. Rep. 471; Queensborough Gas & Electric Co. v. Schoncke, 76 id. 190; Pelgram v. Ehrenzweig, 51 id. 31; Smith v. Hildenbrand, 15 id. 129; Richards v. Littell, 16 id. 339; Malkemesius v. Pauly, 17 id. 371; Schollars v. Coghlan, 54 id. 612. These facts must, however, be a defense in and of themselves. That is not so in this case. These facts do not constitute a bar to plaintiff’s recovery until a court of equity relieves the defendant from the consequence of its own breach of the contract. This a court without equitable powers cannot do. The situation it leaves the parties in goes far toward showing that a court without equitable powers cannot entertain such a defense and accomplish either justice or equity. The defendant has the plaintiff’s money and is to be permitted to keep it, not by reason of any wrongdoing on plaintiff’s part, but by reason of the defendant’s own breach of the contract. The plaintiff can neither obtain her money nor the property because she insisted upon the defendant performing its contract and the defendant could not perform. Under no view of the case can the defendant keep the plaintiff’s money and give her nothing for it. A court of equity may relieve the defendant from the consequences of its breach of the contract but it will only do so when it determines
That brings me to the question as to whether the facts pleaded constitute a defense or not. There would, I think, be no contention that they do if the distinction between a defense and a counterclaim was always, kept clearly in mind. I have no doubt they are often denominated defenses in pleadings and that designation passes unchallenged, but it will, I think, be found that they are coupled with a prayer for affirmative relief and therefore, not defenses, but counterclaims. In a comparatively recent ease (Weinheimer v. Ross, 205 N. Y. 518), Judge Willard Bartlett, speaking for the Court of Appeals, designates them as “ an equitable counterclaim for specific performance ” and that is what they are •— not a defense.
One of the cases cited by the defendant-respondent to show that the Municipal Court has jurisdiction of a ‘ ‘ defense ’ ’ of this character, is Richards v. Littell, 16 Misc. Rep. 339. That was an action for use and occupation and the defendant set up as a defense and
Clark and Benedict, JJ., concur.
Judgment reversed and new trial ordered, with thirty dollars costs to appellant.