
    Joseph Husson, App’lt, v. Albert I. Sire, Impleaded, etc., Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 14, 1894.)
    
    Assumpsit—When lies.
    Where, upon the sale of real estate, part of the purchase money was retained by the vendee, at the suggestion of his attorney, for the purpose of satisfying certain incumbrances, the vendor cannot maintain an action against such attorney for the portion of such deposit remaining after the removal of such liens.
    Appeal from a judgment in favor of the defendant.
    
      Jos. Husson, in pro. per. (Dennis McMahon, of counsel), for app’lt; Albert I. Sire (William L. Stone, Jr., of counsel), for resp’ts.
   Dykman, J.

This is an action for the recovery of money, and the claim of the plaintiff arises out of the following facts: In the month of April,. 1886, the plaintiff and the defendant Oppenheirner made an agreement for the exchange of real property. The plaintiff agreed to transfer certain real property in the city of Brooklyn to the defendant Oppenheirner; and the latter agreed; in consideration thereof, to transfer Certain property in the city of New 'York to the plaintiff. The defendant Sire is a lawyer, and was the attorney for Oppenheirner in this transaction. The parties met at the office of Sire in May, 1886, to deliver the deeds and close the'transaction, when Sire stated that a search against the property of Husson revealed the fact that the same had been sold for water taxes in the city of Brooklyn. Husson insisted that the sales were not incumbrances, but he agreed to leave $450 of the money coming to him under the transaction as a security against any liability which might attach to the property by reason of such sales. Husson, in his testimony, says this: “ There was coming to me on the transaction $3,594.45. They took out $450. That left $3,144.45. And there was an item of $55.85. That left $3,088.60, which was paid,—$844.45 in a check, and the balance of $2,244.15, "in cash.”

It=thus appears that Husson paid no money to any one, and the legal effect of the transaction was to leave $450 in the hands of the defendant Oppenheirner, to secure him against any liability which might arise under or by reason of the sales for water taxes. No money was paid for the cancellation of the sales, but there was $148 paid in settlement of a suit against Oppenheirner. Upon the trial the complaint was dismissed, as against the defendant Sire, and the jury rendered a verdict in favor of the plaintiff against the defendant Oppenheirner. The plaintiff has appealed from the judgment of dismissal, and so the only question presented here is whether the defendant Sirq is liable to the plaintiff for the money so retained when the transaction was closed. It must be borne in mind that Sire received no money, and entered into no "agreement in respect to its retention by Oppenheirner. As he did not receive the money, the law imposed no liability upon him for its payment.' The only legal obligation for its payment rested upon Oppenheimer. He had retained so much of the purchase money, or, rather, money due upon the exchange of the property. Under the agreement with the plaintiff, he was authorized to use it all, or so much as was necessary, to discharge the incumbrance. If he did not so use it, he was under obligation to pay it to the plaintiff. Such was the decision and ruling of the trial judge, and the jury gave the plaintiff a verdict against Oppenheimer. There is no legal principle that will impose liability upon the defendant Sire, under the facts of this case; and the judgment must he affirmed, with costs.

All concur.  