176 A.D. 106 | N.Y. App. Div. | 1916
The action was brought to recover moneys paid by the plaintiff to the defendant upon an agreement to purchase certain real estate for the sum of $1,400, payable $140 upon the signing of the contract and $15 in each and every month thereafter until said principal sum with interest at six per cent on all unpaid balances was fully paid. The contract further provided that upon the full payment of the principal sum the premises should be conveyed to the plaintiff by a deed to be delivered by defendant, containing a clause of general warranty and full covenants and also a policy of title insurance to be issued by the Title Guaranty and Trust Company of New York. The complaint further alleges that the plaintiff paid to the defendant the sum of $1,400, having completed his payments on or about February 11, 1915, and made demand on the defendant for a deed and title policy and that the defendant failed to deliver, and that by reason of the failure of the defendant the plaintiff has elected to rescind said agreement and demand the return of the moneys paid by him. The defendant, in his answer as a separate and distinct defense and by way of counterclaim, sets forth the making of said agreement, the pay
.The learned trial justice was entirely correct in this decision. The dismissal of the counterclaim was not upon the merits, and the fourth finding as a conclusion of law to that effect should be modified. Furthermore, it was improper to direct judgment to be entered upon the decision. Where there are several issues to be tried at different terms of the court application for judgment must be made either at the Trial Term at which the last issue was tried, or on motion after that trial. (Code Civ. Proc. § 1221.) This section applies not alone to section 1220 of the Code but also to section 973. There can only be one final judgment in an action at law. Therefore, the fourth conclusion of law should be modified to read: “ The counter
The judgment appealed from should be vacated and set aside, without costs to either party.
Clarke, P. J., McLaughlin, Scott and Smith, JJ., concurred.
Judgment vacated and set aside, without costs.