
    Benjamin Jaffe, Appellant, v. Charles H. Ohlan, Respondent.
    (Supreme Court, Appellate Term,
    January, 1906.)
    Municipal courts — Jurisdiction — Cases involving title to real estate. Municipal Court Áct (L. 1902, ch. 580, § 179).
    The complaint in an action brought in the Municipal Court of the city of New York, after alleging that, in consideration for the assignment of plaintiff’s interest as vendee in a contract for the sale of certain real estate, defendant agreed, in writing, to pay one hundred dollars on a certain day or sooner if the title to the premises was taken sooner, alleged a demand of the one hundred dollars on the day named and the defendant’s refusal to pay. The answer, after alleging that it was agreed that plaintiff should not receive the money unless title was conveyed to defendant, alleged that the other party to the contract of sale had failed to convey title to the defendant, though he was ready and willing to receive it; that the title would come in question and the court was without jurisdiction. Upon the trial the writing between plaintiff and defendant was received in evidence, together with proof of delivery of the contract of sale and demand and nonpayment. Held, that a dismissal of the complaint, on the ground that the court had no jurisdiction, upon defendant’s mere offer to prove that he had attended at the time and place mentioned in the contract of sale for the purpose of taking title, but that the vendor had failed to attend or to tender a deed to defendant, or to the party. mentioned in the contract, which offer failed to include evidence that might tend to vary the written instrument, thus failing to show the materiality of the title to the premises, was error, without determining whether a question of title sufficient to oust jurisdiction was raised by defendant’s answer.
    Appeal by the plaintiff from a judgment in fiver of the defendant, rendered in the Municipal Court of the city of Hew York, second district, borough of The Bronx.
    Moses Jaffe, for appellant.
    Kiendl Brothers, for respondent.
   Blanchard, J.

This is an appeal from a judgment dismissing the complaint. The plaintiff assigned to the defendant a contract for the sale of certain realty which the plaintiff had entered into with one Doyle. In consideration for said assignment, the defendant agreed in writing to pay the plaintiff “ the sum of One hundred (100) Dollars on August 15th, at 10 A. M., or sooner, if title to said premises is taken sooner.”

The complaint alleges these facts and the demand, on August 15, 1905, by the plaintiff, of one hundred dollars and the refusal of the defendant to pay it. The defendant’s answer admits the instrument in writing, but alleges that it was also agreed that the plaintiff should not receive the ¡hundred dollars unless title was conveyed to defendant. Tt further alleges that Doyle has failed to convey the title ■to the defendant, although the defendant was ready and willing to receive it; and that the title to the premises will come in question and, therefore, that the court is without jurisdiction.

Upon the trial, the plaintiff introduced in evidence a written instrument, and proofs of delivery of the contract of sale, and demand, and .the nonpayment and rested. The defendant then moved to dismiss the complaint, on the ground that the plaintiff failed to show that he was ready to deliver a deed “ at the time mentioned in the contract,” and, also, on the ground that the court had no jurisdiction. ■The defendant then offered to prove that he had attended, on August 15th, according to the contract, for the purpose of taking title; but that Doyle had failed to attend, or to tender a deed to the defendant, or to the party mentioned in the contract. Do evidence was introduced to substantiate this offer, although no objection was made thereto. Upon a motion to dismiss, judgment was rendered dismissing the action for want of jurisdiction.

Without determining whether a question of title, sufficient to oust jurisdiction, was raised by the defendant’s answer, it is apparent that no such question of title was before the court, when the motion to dismiss was granted. The plaintiff’s case raised no such question, because the .alleged default of the defendant occurred on and after August 15, 1905; and, according to the written contract, the title was material only in the possible event that it might have been taken before August 15, 1905. The defendant’s offer •of proof, by failing to include evidence which might tend to vary the written instrument, failed to show the materiality of the title in the present case. The learned court erred, therefore, in dismissing the complaint on the grounds stated.

Dowling, J., concurs.

Scott, J., concurs in result.

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