183 A.D. 652 | N.Y. App. Div. | 1918
Notice of the motion was given to both defendants, but the Equitable Trust Company did not appear and the record contains no pleading by it. It appears that the appellant served a second amended answer, and, therefore, the motion so far as he is concerned, must be decided on the complaint and that answer. The plaintiff, however, improperly read in support of the motion the original and amended answers. They have been incorporated in the record but cannot be considered. If the purpose thereof was to show that defendant should not be granted further leave to amend that sufficiently appeared by the fact that his last pleading is a second amended answer, and if the purpose was to claim that the same question had been decided on motions with respect to the former pleadings, it was sufficient to draw the attention of the court to the decisions.
The action was brought to recover the sum of $10,000 which was deposited by plaintiff with the defendant trust company in escrow pursuant to a modification of an agreement in writing made between him and the appellant on the 6th day of January, 1917. In the original agreement the appellant was designated the vendor, and respondent the vendee. It recites that the vendor was the owner of the premises known as the Times Square Hotel in the city of New York,
The plaintiff alleges, among other things, that the trust company refused to act as depository under the agreement, but entered into an agreement with appellant and respondent whereby it agreed to act as depository to hold the $10,000 and bill of sale and lease subject to their joint instructions in writing and that thereupon delivery was made to it accordingly; that it was thereupon further agreed between appellant and respondent that if the agreement of January sixth, which was continued in force, was not consummated by the first of July, the respondent might withdraw the $10,000; that at the time the first agreement was made the premises were subject to an overdue mortgage for more than $160,000 held by the Atlantic Dock Company, and that appellant failed to remove it and other incumbrances on or before July first, whereupon and on July second plaintiff demanded the return of the money, which was refused on objection thereto by appellant. The answer contains no denial of these alie
The second amended answer after putting in issue certain allegations of the complaint pleads as a separate defense and counterclaim, repeating therein by reference the denials, thát appellant was the beneficial owner of the premises but had executed a conveyance thereof to said Atlantic Dock Company as security for an indebtedness in excess of $160,000; that said company was ready, willing and able to reconvey the premises to appellant upon payment to it of $10,000 in cash and the execution to it of a bond secured by a mortgage on the premises for $150,000, and that relying thereon appellant entered into the agreements with respondent; that respondent, after the making of the agreements between him and appellant and with full knowledge of these facts, entered into negotiations with the. Atlantic Dock Company for the purchase of its interest in the premises and offered it more than the amount for which it was willing to reconvey to appellant and wrongfully induced it to refrain from negotiating with appellant for a reconveyance of the premises and from accepting from appellant $160,000 for such reconveyance and induced it to postpone action with reference to reconveying to appellant until after said July first, whereby and solely by reason of the acts of the respondent appellant was unable to perform the agreement with respect to the removal of incumbrances and placing a new mortgage or mortgages thereon as he would otherwise havé been able to do and would have done; that plaintiff is ready, willing and able to perform the agreement in all respects excepting in so far as it provides that the premises shall be subject only to a mortgage not exceeding $150,000, which provisions, it is alleged,^were rendered null and void and were waived by said acts of the respondent which prevented compliance therewith by appellant. Appellant in his answer demands judgment dismissing the complaint and for specific performance in so far as “ this plaintiff is able to perform the same ”— by which is doubtless meant defendant — and for $10,000 damages.
The -only question presented by respondent’s motion and by the appeal is whether under these allegations in the separate defense facts may be proved which would prevent a recovery
It is, however, contended by counsel for respondent that the second answer does not differ materially from the former answers which the court at Special Term held were insufficient. It is not argued and of course it could not be seriously argued that the former orders are res adjudicata with respect to the sufficiency of this pleading which supersedes the former answers; but it is contended that they are stare decisis. They were not reviewed by this court and, therefore, the doctrine of stare decisis cannot be invoked here. We have the same authority to overrule [¿he former Special Term decisions as we have to reverse the one now under review.
The plaintiff, therefore, was not entitled to judgment on the pleadings, and the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Claeice, P. J., Dowling, Page and Sheabn, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.