Max Cohen, Appellant, v. Max Steckler, Respondent

Max Cohen, Appellant, v. Max Steckler, Respondent. Second. Department, April 24, 1908. Pleading—vendor and purchaser — complaint not stating action to recover amounts allowed to liquidate liens. A complaint which alleges that the plaintiff and the defendant S. agreed to exchange lands and that the plaintiff conveyed his property to G., the assignee of S., subject to liens, the arrears of interest on which the plaintiff was required to liquidate under the contract, and that although the amounts of the arrears were allowed by the plaintiff to S. and G. who agreed to apply the sum for that purpose, they failed and neglected so to do, does not state a cause of action to recover the amounts so allowed, if it' do not appear that the plaintiff was damaged by the failure of the defendants to apply the moneys, or that after the conveyance the plaintiff remained personally liable for the interest, Appeal by the plaintiff, Max Colien, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 13th day of November, 1907, dismissing plaintiff’s complaint. M. H. Newman, for the appellant. Isaac Miller, for the respondent. [MAJORITY — Jenks, J.:] Jenks, J.: This is an appeal from a judgment dismissing the complaint because it does not state a cause of action. The complaint shows these facts. The plaintiff and Steckler agreed to exchange real properties. The plaintiff accordingly delivered the deed of his property to Goodman (the assignee of Steckler), subject to two mortgages. The amount of arrears of the interest on the mortgages and the tax on that property were allowed by the plaintiff to Steckler (and Goodman). Steckler agreed to apply that amount to that purpose, but failed and neglected to do so. The plaintiff, therefore, sued Steckler and Goodman to recover that amount. The plaintiff’s motion to dismiss his complaint as to Goodman was granted. I think that the judgment shouldffie affirmed. Under the agreement for exchange the plaintiff was bound to pay the interest on the mortgages and the taxes. Plaintiff’s allowance to Steckler (and Goodman) of the amount necessary to make such payment was in effect to discharge plaintiff’s obligation and his premises were taken as if presented for the exchange under the agreement therefor, freed from such charges. It does not appear that plaintiff had been damaged by the neglect or omission of Steckler to make the application of these moneys, or that after the delivery of the deed of the premises by the plaintiff to Goodman (who stood in Steckler’s shoes) plaintiff remained liable either for the interest upon the mortgages or for the taxes. The cases citfed by the plaintiff to sustain his contention can be discriminated. In Thomas v. Ruhl (30 Misc. Rep. 567) the defendants who left the amount of the tax with the plaintiff for payment were on the bond of the mortgage and were compelled to pay the taxes in order to avoid a deficiency in foreclosure proceedings; and thus they paid the taxes twice, once to the plaintiff and again to the tax collector. In Sage v. Truslow (88 N. Y. 241) Styles was personally liable upon the mortgage which had been foreclosed, and the judgment for deficiency entered against Styles had been increased by the amount of the tax which Truslow had agreed to pay. The rule cited from Rector, etc., of Trinity Church v. Higgins (48 N. Y. 532) does not apply because, so far as the plaintiff shows, it does not appear that the agreement of Steclder was to “ do any act to prevent damage to the plaintiff.” The dismissal was “ without prejudice and without costs.” It may be that the plaintiff can state a cause of action, but I tliinlc that he has not done so in this complaint. Hooker, Gaynor, Rich and Miller, JJ., concurred. Judgment of the Municipal Court affirmed, with costs.