
    Thomas E. Hogg, Resp’t, v. John Mack, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed July 9, 1889.)
    
    Venue—Action bob breach oe agreement to convey band—Code Ciy. Pro., § 982. -
    An action by a vendee for breach of an agreement to convey land, the complaint alleging that defendant was not seized of and could not convey an unincumbered estate, which was denied by the answer, is not within the provisions of section 982 of the Code of Civil Procedure, providing that certain actions shall be tried within the county wherein the subject of the action is situated.
    Appeal by the defendant from a special term order denying a motion to change the place of trial from the county of New York to the county of Rockland, on the ground that the latter county was the proper place of trial, and that the convenience of witnesses would be promoted by the change.
    
      Anderson Price, for app’lt; P. H. Vernon, for resp’t.
   Bartlett, -J.

The complaint in this action alleges that on or about July 31, 1888, the plaintiff and the defendant entered into a written agreement, under seal, whereby the defendant agreed to sell to the plaintiff certain lands situated in Rockland county, in this state, for the sum of $11,500, upon receiving payment of which sum he would execute, acknowledge and deliver to the plaintiff, or his assigns, in the city of New York, on September 29, 1888, a warranty deed conveying the said premises in fee simple, free from all incumbrances.

The complaint further alleges, that on the execution of the agreement, the plaintiff paid the defendant $500 in part payment for the premises, and immediately thereafter employed an attorney to examine the title, and has become liable to pay said attorney $300 for his services and disbursements in connection with such examination. That on September 29, 1888, the plaintiff was ready and willing to fulfill the agreement, and that he has duly performed all the conditions thereof on his part, but that the defendant could not then, and cannot now, convey a good title to said premises free from all incumbrance, and did not make a good title thereto pursuant to his agreement, and that, on the contrary, the said title was, and still is, subject to various defects and incumbrances, which were well known to the defendant, but were not known to the plaintiff, and some of which are set out in the complaint. Finally, the complaint alleges a demand for the return of the $500 which the plaintiff paid the defendant on executing the agreement, and for payment of the $300 expended in examining the title, and prays judgment for the aggregate of $800 with interest. The defense, in substance, is that the defendant had a good title, and was ready to convey it to the plaintiff.

The defendant contends that the complaint brings the case directly within the terms of section 982 of the Code of Civil Procedure. That section provides that certain actions must be tried in the county in which the subject of the action, or some part thereof, is situated, and after mentioning various actions relating to real property, including suits for ejectment, partition, dower, waste and the foreclosure of mortgages, it specifies every other action to recover or to procure a judgment establishing, determining, defining, forfeiting, annulling or otherwise affecting an estate, right, title, lien, or other interest in real property or a chattel real.”

The argument of the defendant is, that inasmuch as the plaintiff cannot prevail without showing that the defendant’s title to the premises was defective, the action is one to procure a judgment affecting a title in real estate, and hence falls within the purview of the section cited.

But the mere fact that a .question of the title to real estate may have to be passed upon in a suit, does not make it imperative that the case should be tried in the county where the land is situated. The portion of section 982 of the Code, which has been quoted, appears to relate to two classes of suits, and two only: First, actions to recover an estate, right, title, lien or other interest in real property, or a chattel real; and,second,actions to procure a judgment affecting such an estate, right, title, lien or other interest. - It is plain that the case at bar is not a suit to recover anything but money. Therefore, it cannot belong to the former class; but the appellant would place it in the latter. In endeavoring to do this, he overlooks the significance of the phrase, “ to procure a judgment,” which must not be disregarded in determining what is the true meaning of the clause in which it occurs. That, expression indicates that the actions to which it refers are only those in which the judgment which is sought is one that by its very terms, or by reason of its form and by virtue of the express provisions therein contained, will affect the title to real property or some interest therein. It does not apply to an action at law to recover damages for the breach of a contract, although that contract relates to real property, and the breach is alleged to be due to the inability of the defendant to give the plaintiff a good title; for in such a case the judgment which the plaintiff seeks to procure, is a simple money-judgment, and by no means a judgment in form affecting the title to real property. The case of Kearr v. Bartlett (47 Hun, 245; 13 N. Y State Reporter, 580), is not an authority for the appellant, inasmuch as that was an action “to procure a judgment directing a conveyance of real property,” by way of exchange, and, therefore, the suit came directly within the express terms of the section, while the case at bar does not fall either within its letter or its spirit.

Upon the argument, the counsel for the appellant in effect abandoned the ground that the venue ought to be changed on account of the convenience of witnesses, and, therefore, the only question which has been considered is, whether the defendant is entitled to have the case tried in Rockland as being the proper county. We are of the opinion that he is not; and the order should, therefore, be affirmed, with costs and disbursements

Van Brunt, Oh. J., and Macomber, J. concur.  