
    Louis Kaplan, Plaintiff, v. Gottlieb Cohen, Defendant.
    (Supreme Court, Kings Special Term for Motions,
    February, 1901.)
    Pleading — Insufficient allegation of payment.
    In an action to recover back a partial payment made and the expenses incurred on the defendant’s breach of his agreement to convey real estate, an allegation in the complaint that “in said agreement the defendant acknowledged payment by the plaintiff of $100 in part payment of said premises” is not an allegation of the payment of such sum.
    Motion to vacate a Us pendens filed herein, on the ground that no cause of action is alleged for which a Us pendens could be filed.
    Harry Zim for plaintiff.
    Weschler & Burstein for defendant.
   Gaynor, J.

The complaint alleges that the defendant entered into a written contract to convey certain real estate to the plaintiff, and that he failed to do so on the contract day because he could not give good title. There is also the following allegation: “and in said agreement the defendant acknowledged the payment by the plaintiff of $100 in part payment of said premises.” This is not an allegation of the payment of $100 by the plaintiff to the defendant. ¡Nor is there any allegation that the plaintiff searched the title and incurred expense therein. The prayer for judgment for $167.50 is therefore based on nothing. The Us pendens is filed on the theory that the plaintiff may he given a lien by judgment on the land for the amount he paid on account and of his expenses in searching the title; but as the complaint alleges no such payment or expense there is no cause of action alleged.

The motion is granted, with $10 costs.  