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181 A.D. 247

Bloom v. Sutton

Appellate Division of the Supreme Court of the State of New York

Decided December 31, 1917

Appellate Division of the Supreme Court of the State of New York · decided 1917-12-31

Appeal by the plaintiff, Sol Bloom, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of May, 1917, denying plaintiff’s motion to sustain his demurrers to the first and second counterclaims in the amended answer of the defendant Florence M. Sutton, and granting the motion of said defendant to overrule the said demurrers.

Decided 1917-12-31

Page, J.:

¶1The action is to recover the sum of $5,000, paid as a part of the purchase price, on the signing of a contract for the sale of real estate and also for the expense in searching the title, the defendant Sutton having failed to perform because of an unmarketable title.

¶2The amended answer of the defendant denies the essential allegations of the complaint, and for a first counterclaim alleges a modification of the original agreement, her readiness and ability to perform according to its terms and that she tendered a deed in conformity therewith, and plaintiff’s default. Damages of $2,500 for broker’s commission and attorney’s fees are alleged and sought to be recovered. This counterclaim is insufficient in law. If the plaintiff establishes the fact that the contract is as alleged in his complaint it effectually disposes of the defendant’s claim that the contract was different and defendant could not reduce the recovery by showing a breach of a contract which she alleged but had failed to prove. If the defendant succeeds in proving under the denials that she tendered performance of the contract *249that actually existed, and that plaintiff was in default, she would retain the $5,000.

¶3The second counterclaim is for the wrongful and malicious filing of the contract after the time fixed for the closing and after plaintiff’s default. This alleges a tort and cannot be interposed in the action because, if after default, it does not arise out of the contract or transaction set forth in the complaint nor is it connected with the subject of the action. (Uvalde Asphalt Paving Co. v. Morgan Contracting Co., 120 App. Div. 498, 500, 501.)

¶4The order overruling the demurrers will, therefore, be reversed, with ten dollars costs and disbursements, defendant’s motion denied and plaintiff’s motion granted, sustaining the demurrers, with ten dollars costs.

¶5Clarke, P. J., Scott, Smith and Shearn, JJ., concurred.

¶6Order reversed, with ten dollars costs and disbursements, defendant’s motion denied and plaintiff’s motion granted, with ten dollars costs.

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