
    James M. Stevens, Resp’t, v. John K. Van Ness, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 22, 1892.)
    
    Vendor and purchaser—Failure to convey.
    Plaintiff contracted to purchase certain land of defendant and paid all but $25. On tender of the balance defendant claimed to have a title, but refused to_ show it, to receive the money or give a deed, or to return the money paid. The record showed an incumbrance on the property, and no title in defendant, but on the trial he showed an unrecorded title and an unrecorded satisfaction of the incumbrance. Held, that plaintiff was entitled to recover the money paid by him.
    Appeal from judgment in favor of plaintiff.
    Action to recover money paid upon a contract for the purchase of certain real estate.
    
      W. H. Schooley, for app’lt; W. J. Powers, for resp’t.
   Barnard, P. J.

—The plaintiff entered into an agreement with the defendant, whereby the defendant agreed to sell to the plaintiff a .piece of land for $600. He paid the defendant $575 thereon, and he avers in this action that he was induced to enter into the agreement by the false statements made by defendant to him, that he, the defendant, had a good title to convey, and that the same was free and clear of incumbrance. The proof established the contract and the payment of the money thereon and the refusal by the defendant to deliver the deed. The record showed no title in the defendant, and that it was incumbered by mortgage. The defendant refused to show any title in himself when the conveyance was demanded. Upon the trial he did show an unrecorded title and unrecorded satisfaction piece for the mortgage. The case then turned upon the intent with which the defendant-made the agreement with the plaintiff and took his money. It was proven that he was asked to fulfill; that he said he had a title-hut would not show it; he refused to receive the $25 or to give a deed. He refused to pay the $575 back to plaintiff. The jury have found that the defendant meant to get the plaintiff’s money and give nothing back, and the evidence sustains the verdict. The facts cannot be explained upon the assumption that the defendant had a title and intended to give it.

Judgment affirmed, with costs.

Dykman, J., concurs; Cullen, J., not sitting.  