
    VANDERBILT v. BALDWIN.
    
      N. Y. Supreme Court, First District, Special Term ;
    
    January, 1885.
    Action for money paid.—Contracts ; joint.—Counter-claims ; BREACH OF JOINT CONTRACT.
    One party to a joint contract cannot set up in his separate answer a counter-claim for its specific performance or for damages for its breach.
    In an action to recover the money paid on account of the purchase price of real estate, which the plaintiff had agreed to purchase and the two defendants to sell, the separate answer of one defendant set up a counter-claim for damages to him for the plaintiff’s breach of the contract in refusing to perform it, and' a counter-claim also for specific performance of the contract. On demurrer,—Meld, that the contract was strictly joint, and as the plaintiff could not have maintained the action against either defendant alone, such counterclaim could not properly be set up by one defendant.
    Issue of law joined by service of demurrer to two counter-claims contained in the semrate answer of the defendant Myers.
    William K. Vanderbilt sued William B. Baldwin and Sinclair Myers, to recover back $2,000 paid on account of the purchase price of land upon the execution of a contract for its purchase by the plaintiff of the defendants, and for damages for the refusal of defendants to fulfill the contract and convey the land.
    The contract, which was set forth in the complaint, “between William B. Baldwin, of the city of New York, and Sinclair Myers, of the city of New York, parties of the first part, and William K. Vanderbilt, of the same place, party of the second part,” provided that “the said parties of the first part” agreed to sell to the party of the second part certain described land : “ And the said parties of the first part, on receiving such payment at the time and in the manner above mentioned, shall, at their own proper costs and expenses, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered tc the said party of the second part, or to his assigns, a proper deed containing a general warranty and the usual full covenants for conveying or assuring to him or them the fee simple of the said premises, free from all encumbrances,” &c. “ And it is understood, that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators and assigns of the respective parties.”
    The defendants, Baldwin and Myers, answered separately. The defendant Baldwin traversed divers of the allegations in the complaint, and alleged a refusal, on the part of the plaintiff, to perform the contract. The defendant Myers, by his separate answer, after joining issue with the plaintiff as to certain facts, sets up two distinct counter-claims, one of which prays for an affirmative judgment for $10,000 damages to him, and the other for specific performance of the contract, which was set out in full; alleging his ability and willingness to deliver a deed of the property, and, as he is informed and believes, a willingness on the part of his co-defendant Baldwin to do likewise.
    The plaintiff demurred to the two counter-claims set up in the separate answer of the defendant Myers. The demurrer alleged that these counter-claims were insufficient in law, in substance, because they seek to counter-claim separate and individual demands of the defendant Myers against the plaintiff’s joint demand, founded upon the joint contract of the defendants.
    
      William, Jay, for the plaintiff, demurring.
    
      Edward Patterson, for defendant Myers, opposed.
   Barrett, J.

The contract sued upon is plainly joint. There are no words of severance, express or implied. Baldwin and Myers agree to sell, Vanderbilt agrees to purchase. There is no room for a “joint and several” construction.

The covenant to cause to be conveyed, is none the less joint than the covenant to convey. As to the provision with regard to personal representatives, that is simply declaratory of the rights of successors in interest. The “respective parties” there referred to are the two joint contractors of the one part, and the one individual contractor of the other part. There is nothing whatever in that expression to favor the idea of a severance as between the parties of the first part.

It is clear that the plaintiff could not have maintained this action against either defendant alone. That seems to me to be the true test of the right of either defendant alone to interpose these counterclaims.

If, as suggested, Baldwin refuses to join in these counter-claims with Myers, and the latter desires to proceed upon that theory (in substance as permitted by section 448 of the Code), the fact should have been stated and appropriate relief asked. Instead of that, Myers treats the demands set up in the counter-claims as his individual dioses in action.

As they cannot be counter-claimed against what we deem to be a joint demand, growing out of a strictly joint contract, the demurrer must be sustained with costs.  