
    James Neil, Jr., and William Neil, Respondents, v. Hattie Y. Rosenthal, Appellant, Impleaded with Irving Margulies, Respondent.
    First Department,
    July 15, 1907.
    Beal property — vendor’s lien — facts not establishing right thereto— • when complaint in equity does not authorize rnoney judgment.
    Action to establish a vendor’s lien.
    The plaintiffs, remaindermen, entered into a contract with the defendant to • procure "and assign to her a contract of sale by the life tenant who" as executor had a power of sale of the whole premises. It was agreed that the defendant should pay a sum stated on the assignment of the life tenant’s contract and a further sum when she, the defendant, resold the premises." The-contract of- ■ the life tenant was assigned to the defendant, who subsequently acquired -the complete title-from the life tenant under his power of sale, and in her turn conveyed to a, third person who had no notice of the agreement.
    
      Meld, that the remaindermen were not entitled to a vendor’s" lien either upon the premises sold or upon the consideration received by "the- defendant on the resale, but at the mpst were common creditors, of the defendant, entitled only to recover at law for a breach of contract to pay the balance due on the resale;
    That as the complaint' demanded equitable relief only and contained no demand for a money judgment, the plaintiffs were not entitled .thereto.
    Appeal by the defendant, Hattie Y. Rosenthal, from'a judgment of the Supreme Court. in favor of the plaintiffs and the defendant Margulies, entered in the office of the clerk of the county of New York on the 2d day of April, 1906^ upon the decision of the court rendered after á trial at the New York Special Term.
    
      Harold Nathan, for the appellant.
    
      John W. Ingram, for the plaintiffs, respondents.
    
      Philip S. Dean, for the defendant, respondent.
   Lambert, J.:

■ The 'facts as they.are alleged in the complaint.and found by the' court, the complaint being ordered amended to conform with the proofs, are in substance as follows-: The mother of the' plaintiffs, Elizabeth Heil, died leaving a last will and testament. Under an agreement construing the same each of the plaintiffs was the owner iu remainder of a one-fourth part of the premises involved in this action, subject to a life estate of their father, James Neil, Sr., who, as executor and trustee, was given a power of sale of the premises. The plaintiffs desired to realize upon their interest in the premises 1712 Madison avenue, city of New York, and’ after talking with Marcus A. Rosenthal, defendant’s husband, the plaintiffs entered into an informal contract with their father, in which, the latter agreed to convey the said .premises for $17,000. Of this amount $8,500 represented a one-half interest, which was the interest of these plaintiffs. The plaintiffs agreed to give the father $3,000 for his life estate in their one-half interest, so that there would be . $11,500 for the father and the other. two heirs, leaving $5,500 for the plaintiffs. Subsequently the father agreed to take $11,000 cash upon the consummation of the deal, and a written agreement was drawn up and signed by Rosenthal, whereby lie agreed to give the plaintiffs $5,500, $1,000 each upon their assigning to him the contract with the father, and the balance when the property was resold by him. Subsequently Hattie Y. Rosenthal, the defendant, was substituted in the contract for Rosenthal. It is conceded that each of the plaintiffs received $1,000 on the assignment of the contract of purchase with the father, and that subsequently the defendant com. veyed the premises to the defendant Margnlies, and the court has found that this conveyance was made to the latter without any notice to him of any' rights on the part of these plaintiffs; that the defendant Hattie Y. Rosenthal failed to notify the plaintiffs of the sale, and that she lias failed to pay the $3,500 which was to be paid upon her effecting a resale of the premises. The court found, as a conclusion of law, that the plaintiffs were entitled, to a lien in the aggregate sum of $3,500 upon the purchase money in the bands of the defendant Rosenthal, and gave judgment accordingly. The defendant Rosenthal appeals from this judgment.

A mere statement of the facts as found by the court is sufficient to show that the plaintiffs never acquired a vendor’s lien upon the premises. At most, viewed from the standpoint of equity, they conveyed no more than their interest in the premises, and it is conceded that they received the cash payment agreed upon, and they were not to have anything more until the defendant had resold the ( premises, a contingency which does not appear to have been fur-. ther provided for in their contract. The father made the conveyance and the defendant took a clear title, and she did not owe the plaintiffs 'anything unless she resold the premises. • She was in a position to convey all of the plaintiffs’ interest in the premises to the defendant Margulies, the latter having no knowledge of any. alleged equities, for it was only upon this contingency that the plaintiffs were to become entitled to the further sum. During the time which elapsed between the date of the conveyance to the defendant Rosenthal and the deed to the defendant Margulies there was clearly no vendor’s lien upon the premises, and as the property could be conveyed clear of such a lien it does not appear reasonable to hold that a lien could arise upon the happening of the contingency upon which the. defendant Rosenthal’s obligation to the plaintiffs arose. Taking the plaintiffs’ own version of the case, there was merely a contract debt on the part of the defendant Rosenthal, knd it does not appear from the facts of this case that •she was not prepared to pay her debts, or that there was .any special reason why the plaintiffs should be given a lien upon this particular fund. It is not the province of a court of equity to interfere to protect one class of creditors over another, except in cases where there are equitable reasons' of a controlling nature, and in the present case there are no facts which would entitle the plaintiffs to a higher claim upon the funds in the hands of the defendant Rosenthal than would belong to any other contract creditor.

The plaintiffs do not show themselves entitled to the equitable relief demanded, nor' to any equitable relief. It would require a very liberal construction of the complaint involved to show a right to recover at law; there is no demand for such a- recovery; no demand for the recovery of any definite amount, and the whole theory of. the action is outpf harmony with an action at law. The theory of the complaint, as .drawn, is that the $5,500 became due upon the transfer of the contract of sale made by the father „with the plaintiffs, while the complaint as amended upon the trial shows that the contract, if it existed, was to pay $1,000 to each of the plaintiffs and the balance on the defendant Rosenthal reselling the property. This is not alleged in the complaint, and it would have • to be entirely remodeled to meet the facts as they have been found .by the eo.vu’t in the present aetion, Undoubtedly, if the plaintiffs have a cause of action, it is an action to recover upon the contract, and the present complaint is not sufficiently clear to warrant a recovery at law.

The judgment appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.

Patterson, P. J., Ingraham, Clarke, 'and Houghton, JJ., concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.  