
    William P. McCormick, Respondent, v. Frank J. Tyler, as Executor of and Trustee under the Will of Benjamin Hawker, Deceased, Appellant.
    
      McCormick v. Tyler, 164 App. Div. 886, affirmed.
    (Submitted April 14, 1915;
    decided May 4, 1915.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department,. entered July 10, 1914, which affirmed an order of Special Term sustaining a demurrer to the answer in an action to recover a deposit paid on entering into a contract-for the purchase of certain real property situated in the city of New York and for the enforcement of a lien upon the said premises for the amount so paid on the defendant’s refusal to convey the premises. Defendant contended that the .complaint did not state a cause of action against him in his representative capacity as sole executor or trustee under the will of his testator, but that, on the contrary, it clearly appeared upon the face of said complaint, and the contract, which is made a part thereof, that no such cause of action could exist under the facts and circumstances therein set. forth, and that, therefore, the specific real estate of the trust estate, described in said complaint and contract, was not liable, and should not be permitted to be liened or incumbered, as therein prayed for; nor should the general estate of his testator be held liable because of any of the matters and facts set forth in said complaint and contract.
    The following question was certified: “Does the complaint state facts sufficient to constitute a cause of action % ”
    
      Isidor F. Qreene for appellant.
    
      David Weinstein for respondent.
   Order affirmed, with costs, question certified answered in the affirmative; no opinion.

Concur: Werner, Hiscock, Chase, Collin, Hogan, Miller and Cardozo, JJ.  