
    Charles W. Maier, Appellant, v. Joseph H. Rebstock, Respondent.
    
      Yenue of an action for the breach of a contract to repurchase land sold by the defendant to the plaintiff.
    
    A complaint in an action brought to recover damages for the breach of a contract, alleged to have been made upon the sale by the defendant to the plaintiff of a parcel of real estate, by which the defendant agreed that if the plaintiff should be unable to sell the property at the end of three years at- an advance sufficient to cover the purchase price, interest and necessary expenses, the ■defendant would take the property back and repay to the plaintiff the pur■chase price together with interest and expenses, does not affect any interest in the real estate and need not be brought, under section 982 of the Code of Civil Procedure, in the county in which such real estate is situated.
    Appeal by the plaintiff, Charles W. Maier, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Seneca on the 13th day .of November, 1901, changing the place of trial of the action from the ■county of Seneca, where it was brought, to the county of Erie, upon the ground that the action was brought to procure a judgment ■annulling a contract affecting an interest in real'property situate in the county of Erie, and that, therefore, under section 982 of the ■Code of Civil Procedure, Erie county was the proper county in which to try such action.
    
      William S. MacDonald, foi the appellant.
    
      A.rthwr W. Hickman, for the respondent.
   McLennan, J.:

In the complaint it is alleged in substance that on and prior to-January 10, 1893, the defendant was the owner of certain premises situate in the city of Buffalo and described in the complaint; that on that day, by warranty deed, the defendant conveyed the same to the plaintiff for the sum of $720, upon the express agreement upon the part of the defendant that if the plaintiff should be unable to sell the property at the end of three years at an advance sufficient to cover the purchase price and six per cent interest thereon and the necessary expenses incurred in respect to such real property, the defendant would take the property back and repay to the plaintiff the purchase price, together with six per cent interest and all other-expenses incurred in connection with the property; that the plain-, tiff at the end of said three years in good faith tried to sell the-property for such sum, but was unable to do so, and thereupon tendered to the defendant a reconveyance of the premises and demanded the moneys so paid out by him; that the plaintiff had paid out for taxes on said property certain, sums and necessarily incurred other expenses, all of which are specified. Judgment is demanded for the purchase price paid, together with the expenses so necessarily incurred by, the plaintiff, with interest thereon.

The action is one at law. Ho equitable relief is demanded, and none could be awarded. The title to real' property can be in no-manner affected by any judgment which may be properly rendered in this action, and such judgment can. in no manner affect any interest in the real property mentioned in the complaint. It is not. an action “ to procure a judgment directing a conveyance of real property * ■ * * or * * * establishing, determining, defining, forfeiting, annulling or otherwise, affecting an estate, right, title,, lien or other interest in real property or a chattel .real.” (Code Civ.. Proc. § ,982.)

If the plaintiff shall succeed in the action, judgment for a sum of money only can be awarded to him. Such judgment cannot properly contain any provision or direction respecting the real property described in the complaint, or any interest therein. It is -immaterial to the plaintiff whether or not the defendant accepts a reconveyanceof the property, and the judgment which may be awarded cannot compel such transfer.. One of the steps .essential to entitle the; plaintiff to the judgment asked for is a tender of a reconveyance, and undoubtedly such tender must be kept good; but whether it shall be accepted or not is entirely optional with the defendant.

In Hogg v. Mack (53 Hun, 463), it was held that the mere fact that a question as to the title to real estate might have to be passed upon in the.suit, did not make it imperative that the case should be tried in the county where the land was situated. In the case at bar there is no question of title, even, to be passed upon. In the case of Hogg v. Mack (supra) it was further held that the section (982) did not apply to an action at law to recover damages for a breach of the contract, although that contract related to real property. (Becker v. Town of Cherry Creek, 10 Hun, 6.)

The conclusion is reached that the cause of action alleged in the complaint is not one of those specified in section 982 of the Code of Civil Procedure, and that, therefore, Seneca county, where the plaintiff resided, was the proper county in which to bring the action.

It follows that the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Adams, P. J., Spring, Williams and Hiscook, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  