70 N.Y.S. 206 | N.Y. App. Div. | 1901
This action is brought to recover damages for breach of contract in the sale of real property. The complaint avers the making of the contract, its breach, and demands damages in a specified sum. The amended answer of the defendant admits the making of the contract, and that at the. time fixed therein for the delivery of the deed delivery of the same was not tendered. It then avers that at that time it was ready to return to the plaintiff the amount which had been paid upon the contract. Eor a separate defense and as an equitable counterclaim to the action, it is averred, inter alia, that, prior to the execution of the agreement set forth in the complaint, the defendant agreed, upon certain terms, to sell the premises mentioned therein, and that as the • execution of such contract was dependent upon the fulfillment of another contract between other parties and the defendant, it was agreed that if the title to the property was objectionable to the plaintiff the money paid upon the contract set forth in the complaint at the time of its execution should thereupon be refunded, and thereupon such contract should become null and void; that such agreement, although made, was not incorporated in the written contract, as it properly should have been, and' such answer demanded judgment that the contract sued upon be
It does not, however, follow that his motion for a stay for the trial of the action should be granted. On the contrary, we think it was properly denied, for the defendant, in the exercise of ordinary diligence, may have the issue presented by the counterclaim tried at Special Term before the issues presented by the complaint can be reached for trial. Consequently there is no basis for granting a stay of proceedings. The order appealed from should be affirmed, with ten dollars costs and disbursements.
Van Brijnt, P. J., Rtjmsey, O’Brien and Ingraham, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.