
    Wolf Balleisen and Others, Appellants, v. Moses Schiff, Respondent.
    Second Department,
    July 23, 1907.
    Specific performance — trial — equitable relief waived — no judgment on counterclaim without proof.
    When the plaintiff vendor in an action to compel the specific performance of a contract to purchase lands withdraws the demand for specific performance at trial by reason of the fact that he had previously sold the property, it is not a rescission of the contract and waiver of the default of defendant which empowers-the court without proof to give judgment for the defendant on a counterclaim for a return of the earnest money and damages.
    Although the defendant is entitled to prove his counterclaim, if he.can, judgment therefor cannot be entered without' proof.
    - Appeal by tlie plaintiffs, Wolf Balleisenand others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of-the clerk of the county of Kings' on the 16t-h day of April, 1906, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      Jacob W. Kahn, for the appellants.
    
      Herman S. Bachrach,for the respondent.
   Miller, J.:

The plaintiffs, as vendors, brought this action to compel specific performance of an executory contract of purchase and sale of real property, alleging a breach on the part of the defendant. The defendant set up a counterclaim, alleging that the plaintiffs-were in default and asking for-a return of his deposit and for damages. -On the trial the plaintiffs, having previously sold the property, withdrew their demand for specific performance, and the court, without taking any proof on the question of which party was first in default, gave the defendant judgment for the amount .of his deposition the theory that the commencement of the suit for specific performance was a recognition of the existence of the contract and that the sale of the property- thereafter was a rescission which gave the defendant the right to a return of his deposit. ■'

It must be assumed, on this appeal, that the defendant was in default when the action'for specific performance was brought, and unless the. commencement .of that action was a waiver of such default, the defendant was not entitled to a return of. the money-paid on the contract, because it is unnecessary to cite, authority upon the proposition ■ that a party cannot make his own breach- of an executory contract a basis for the recovery of -the -money paid by him pursuant to- it. The respondent contends that upon' the breach by the defendant the plaintiffs had their- election of .two inconsistent remedies/ to wit,'(a) an action at law for damages for the breach of contract; (b) an -action in equity for specific performance; and that-the election once made W'as irrevocable and waived the defendant’s default. The difficulty with this argument- arises from the fact, that the action for specific performance and the action for damages are both based on the contract and the defendant’s- default. They are, therefore, not inconsistent'. If one stood on the affirmance of the-contract and'the other on a disaffirmance, the situation might' be different, but the action for damages for the breach is on the contract (Kranz v. Lewis, 115 App. Div. 106), and the plaintiffs might have asked in the same complaint in the alternative for specific performance or for damages. (Miles v. Dover Furnace Iron Co., 125 N. Y. 294.) By bringing the action in equity they: merely submitted themselvés to the jurisdiction of equity and by withdrawing their demand' for relief they could not oust the court of jurisdiction to try the issue raised by the defendant’s counterclaim, but it cannot be-said -that they waived the default which was the basis of their right to recover. The course of the trial left the defendant the opportunity to prove his counterclaim,if he could, but the court, Without any proof wlíat-, ever, could.not give judgment, and for this reason a new trial must be had. '. '.

Jenks, Hooker, Gaynor and Rich, JJ., concurred.

• Judgment reversed and. new trial granted,-costs to abide.the final award of costs. . , '  