
    Cathedral Court Company, Respondent, v. Sun Construction Company, Appellant.
    (Supreme Court, Appellate Term,
    June, 1911.)
    Vendor and purchaser — Waiver of performance or defects — Merger of contract in covenants of deed.
    Where there has been a complete performance of a contract for the sale of real estate by payment of the purchase price and delivery and acceptance of the deed, the contract is superseded, and in the absence of proof of fraud no action lies upon the contract.
    In such case, any remedy of the purchaser must be based upon the covenants of the deed and whether he has a cause of action upon such covenants cannot be determined in an action upon the contract of sale.
    Appeal by the .defendant from a judgment in favor of the plaintiff rendered in the Municipal Court of the city of ¡New York, borough of Manhattan, first district.
    Krakower & Peters, for appellant.
    Strasbourger, Eschwege & Schallek, for respondent.
   Guy, J.

Defendant appeals from a judgment in favor of plaintiff, entered after a trial before a judge without a jury. On February 10, 1910, the defendant entered into a contract with plaintiff’s assignor for the sale of certain premises in 113th street. The contract of sale contained the following clause: and subject also to 28 leases which have been examined and which are initialed 'SvS.”, which leases are now in force, but the performance of which is not guaranteed by the party of the first part.” On March 15, 1910, title to the premises, pursuant to the contract in question, was closed and deed delivered to plaintiff’s assignor conveying the premises subject to the leases in question. Subsequently plaintiff’s assignor conveyed the premises to the plaintiff and, it is claimed by respondent, subsequently assigned to plaintiff the contract previously made between plaintiff’s assignor and the defendant. Sometime thereafter plaintiff began an action against one Fraunhaar, one of the lessees referred to in said contract, to recover rent for the months of July, August and September, 1910, amounting to the sum of $180. Fraunhaar appeared in the action and answered, alleging that he was merely a monthly tenant and had paid his rent up to the time when he had vacated the premises on June 30, 1910. Fotice of said action was given to this defendant. The action was subsequently tried and judgment rendered in favor of the lessee, dismissing the complaint on the merits. Plaintiff then brought this action against the defendant to recover the amount of said rent, ■together with the costs of the action which he brought against the lessee.

It is urged by the appellant that the delivery of the deed to plaintiff’s assignor constituted a complete performance of the contract, and that the contract is no longer in force, but is superseded by the deed delivered in performance thereof and accepted by plaintiff’s assignor. The respondent cites, in opposition to appellant’s contention, Witbeck v. Waine, 16 N. Y. 532, and Disbrow v. Harris, 122 id. 362, 365, where the court held that, where a portion of the purchase money remains unpaid, the execution and delivery of a deed by a vendor, pursuant to an executory "contract of sale of land, does not extinguish the contract. As the ruling of the court in the cases cited is based upon the fact of non-fulfillment, the full purchase price not having been paid, these cases have no applicability 'to the case at bar, where the evidence establishes that there has been complete performance of the contract by payment in full of the purchase price and delivery and acceptance of the deed. The contract, having been fully performed, was superseded by the deed which was delivered in full performance thereof and is, therefore, no longer in force, and no action thereon can be maintained. See Schoonmaker v. Hoyt, 148 N. Y. 425-429; also Witbeck v. Waine, 16 id. ,532-535. There is no allegation of fraud,. and no proof of fraud was offered. This action is purely an action on the contract (see plaintiffs bill of' particulars) which is no longer in force. Whether plaintiff has a cause of action based upon the covenants contained in the deed, as construed in the light of the contract in performance of which it was delivered, cannot be determined in this action.

The judgment should, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event.

Seabury and Bijub, JJ., concur.

Judgment reversed.  