
    Minnie Lewis, Respondent, v. City Realty Company, Appellant.
    First Department,
    November 7, 1913.
    Practice — action to recover for breach of contract to exchange lands — when judgment cannot be directed on pleadings—assessment of damages.
    Where in an action to recover damages for breach of a contract to exchange lands the answer admits that the defendant has failed to convey, or to pay a consideration named in the contract, but denies all other allegations of the complaint, it is error for the court to direct judgment on the pleadings for the sum claimed by the plaintiff as damages for the breach of contract. This, because the amount of damages must be assessed pursuant to section 1183 of the Code of Civil Procedure.
    Appeal by the defendant, City Realty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of February, 1913, dismissing the counterclaims interposed by the answer, and giving judgment upon the pleadings in plaintiff’s favor. The judgment was granted upon the motion of the plaintiff made at the opening of the case upon the trial before the court and a jury at the New York Trial Term.
    
      George E. Blackwell, for the appellant.
    
      Isaac N. Miller, for the respondent.
   Dowling, J.:

The action is brought to recover alleged damages for breach of a contract for the exchange of real estate. The allegations of the complaint setting forth the damages claimed to have been sustained by the plaintiff are contained in paragraph V as follows: ‘ The defendant neglected to comply with the terms of the agreement on its part, and wholly failed to pay the said Five thousand ($5,000) Dollars and to convey to this plaintiff the said premises situated in the Borough of Roselle Park, in the County of Union and State of New Jersey, to the damage of the plaintiff Twelve Thousand ($12,000) Dollars.”

The defendant by its answer denied all the allegations contained in said paragraph V, save that it had not paid the plaintiff the sum of $5,000 therein referred to, and had not conveyed to her the premises in question in New Jersey.

Upon this state of the pleadings it was improper to direct an entry of the judgment in the sum of $12,000 in favor of the plaintiff. The defendant had put in issue the amount of the plaintiff’s damage, and even though no issue was left as to the breach of the contract, the amount of damages sustained should have been assessed pursuant to section 1183 of the Code of Civil Procedure, and there should not have been a direction for judgment. The complaint contains no averment of the value of the property in New Jersey, and the defendant has made no admission as to the same. It is now claimed, in the effort to sustain the judgment, that the bill of particulars did set forth the value of that property, but that would not have supplied the defect in the complaint, and in any event it is not available here for the bill of particulars is not before us.

It follows, therefore, that the judgment appealed from must be reversed and a new trial ordered in order that the damages sustained by the plaintiff, if any, may be properly assessed by a jury. In so far as the judgment dismissed the counterclaims, we think it was properly granted.

Ingraham, P. J., Laughlin, Scott and Hotchkiss, JJ., concurred.

Judgment granted on the pleadings reversed and new trial ordered, with costs to appellant to abide event. Judgment dismissing counterclaim affirmed. Order to be settled on notice.  