
    Eva Joseph, Respondent, v. Isidore Isaac, Appellant.
    (Supreme Court, Appellate Term,
    October, 1905.)
    Vendor and purchaser — Enforcement of contract — Action by purchaser to recover back purchase price — When prematurely brought.
    An action by the vendee to recover money paid on a written contract for the sale of a house and lot, before the day fixed for delivery of the deed, because of the alleged unauthorized change in the writing, after its execution, so as to diminish the size of the lot, cannot be maintained; for, if the writing was in fact changed without authority after its execution, the vendor may yet tender a conveyance of all that was contemplated by the parties; and, if the change was made before execution and the writing thereby failed to express the intention of the parties, the plaintiff’s remedy is an action to reform the contract.
    Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Hew York, second district, borough of Manhattan.
    Paskus & Cohen, for appellant.
    Abraham A. Joseph, for respondent.
   Scott, J.

The plaintiff, on June 1, 1905, sued defendant upon an oral pleading for money had arid received. The defendant, also orally, pleaded a general denial. Upon the trial it appeared that the money which plaintiff seeks to recover was the deposit of part of the purchase price, paid upon a written contract of sale, by defendant to plaintiff, of a house and lot.. The contract provided that the deed should be' delivered and the balance of the purchase price paid on July twenty-seventh. The plaintiff based her claim to recover upon the allegation that she had understood and believed that she was purchasing a house seventeen feet, six inches wide;- and that either the words “6 in.” had been stricken out of the description after she signed the contract, or, if stricken out before her signature, that her attention had not been called to the fact. The contract itself shows that the width of the house had originally been stated as seventeen feet, six inches, and that the words “ 6 in.” had been stricken out. The evidence was quite satisfactory that the alteration was made before the execution of the contract, but for the purposes of this action it makes no difference when the words were stricken out. In no event can the plaintiff recover. It is conceded that plaintiff signed the contract, that the money was paid under it, and that the time for completing the purchase had not arisen. If the words “ 6 in.” were in the contract when plaintiff signed it and were afterward stricken out without her consent, she would be entitled, on the law day, to a deed conveying a lot seventeen feet, six inches wide. Non constat such a deed might have heen tendered to her. On the other hand, if the words had been stricken out before she executed the contract, but, for some reason, the contract, as thus modified, did not express the true agreement between the parties, her remedy would be to sue in equity for a rescission of the contract. In any event, the production of the contract and proof that the money sued for was paid under it and that the day for completion had not yet arrived, was a complete answer to the plaintiff’s present action. The effect of the judgment rendered in the court below is to leave the contract still outstanding and enforceable, with the consideration paid, upon its execution returned to the plaintiff.

Judgment reversed, with costs, and complaint dismissed with the appropriate costs in the court below.

Bischoff and Fitzgerald, JJ., concur.

Judgment reversed, with costs, and complaint dismissed with costs in court below.  