
    John D. Crimmins, Respondent, v. Carlyle Realty Company, Appellant, Impleaded with Vadrick Realty Company and Metropolitan Life Insurance Company, Defendants.
    First Department,
    June 4, 1909.
    Beal property — contract to sell lands — novation — when grantor not entitled to vendor’s lien.
    Where a contract for the sale 'of lands required the vendee to pay a certain sum in cash and secure the balance of the purchase price by purchase-money mortgage, but on the execution f the deed the grantee paid and the grantor accepted a larger sum than that called for by the lontract, together with a purchase-money mortgage for the balance of the agreed price, there was a novation, and the grantee is not entitled-to maintain a suit in equity to establish a vendor’s lien.
    As the grantor accepted the excess cash payment in place of the mortgage, he is not entitled to recover interest on the excess from the date of the original contract to the time of payment.
    Appeal by the defendant, the Carlyle Eealty Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on 'the 11th day of March, 1909, denying the said defendant’s motion for judgment on the pleadings.
    
      Lewis M. Isaacs, for the appellant.
    
      William F. Clare, for the respondent.
   McLaughlin, J.:

This action is in equity to establish a vendor’s lien upon real estate for unpaid purchase money. The complaint alleges that the plaintiff, being the owner of certain real estate situate in the city of New York, agreed oh the 19th, of August, 1908, to sell it to the appellant, which agreed to purchase the same for $480,000. The agreement was in writing, a copy of which is annexed to and made a part of the qomplaint, and it appears therefrom that $20,000 was to be paid upon its execution and delivery, $31,000 on the delivery of the deed, and the balance, $429,000, by the realty company executing and delivering a bond and mortgage for that amount, payable in three years, with interest at the rate of five per cent per annum for the first year and six per cent for the balance of the term ; that the deed was to be delivered at the option of the realty company on or before the 19th day of November, 1908, upon five days’ notice, and that interest on the mortgage at five per cent shoiild run from October 1,1908, but that the date of change of rate thereon and the due date thereof should be November 1, 1909, and November 1, 1911, respectively; that $20,000 was paid at the execution of the contract, and at the suggestion of the realty company the 19th of November 1908, was the date fixed for closing the transaction ; that on-the 19th of November, 1908, title passed and the realty company then paid to the plaintiff in cash the $31,000 called for by the contract and, in addition, $173,333.33, and gave a purchase-money mortgage for $255,667.67,. the balance of the purchase price; that the plaintiff is entitled to interest upon the excess payment of cash—$173,333.33—from the 1st day of October, 1908, to the 19th day of November following, at the rate of five per' cent per annum, amounting to $1,179.55, payment of which was demanded and refused; that judgment is asked for that sum with interest, and that the same be declared an equitable lien upon the premises conveyed.

The answer denied that there was anything due the plaintiff, and alleged that after the making of the contract referred tó in the complaint, and on or about1 the 19th 'of November, 1908, the appellant paid to the plaintiff, and the plaintiff accepted and received from it, in full satisfaction and discharge of the contract provisions an,d of plaintiff’s claim therein, cash in an amount greatly in excess of that called for by the terms of said contract, in lieu of and as' a substitute for a purchase-money mortgage for the amount of such excess.

After issue had been joined, the appellant moved, under section 547 of the Code of Civil Procedure, for judgment on the plead- , ings. The motion was denied, and the appeal is from that order.

I am of the opinion that the complaint fails to state a cause of action, and for that reason the motion for judgment should have been granted. At the time of the delivery of the deed, the original agreement was modified by consent of the parties! Instead of the receipt by the plaintiff .of $31,000 in cash and a purchase-money mortgage for $429,000, as called for by the original contract, he received $224,333.33 in cash and a purchase-money mortgage for $255,667.67. . The sum total of cash and mortgages remained the same in each case, viz., $480,000 — the purchase price — but the result to the,plain tiff was the immediate payment to him in cash of $173,333.33 in place of the vendee’s obligation t'o pay that amount. in three years, secured by a purchase-money mortgage. This substitution of a new term inz the contract made it in effect a new contract. It constituted a novation, the new contract taking the place of the old. (Bandman v. Finn, 185 N. Y. 508; McIntosh v. Miner, 37 App. Div. 483.) The learned justice at Special Term denied the motion, as appears from his opinion, upon the authority of Bach v. Kidansky (186 N. Y. 368). That case is clearly distinguishable from this. There the vendees contracted to pay $101,000, the'terms of payment being $1,500 at the time of executing the contract; $6,500 in cash on delivery of the deed, and $93,000 by taking the premises subject to four mortgages aggregating that amount. Before the time for closing title the vendors were compelled to pay $1,000 on account of one of the four mortgages in order to obtain the discharge of a collateral mortgage, thus, reducing the face of that mortgage by $1,000, and reducing to $92,000 the total amount of the four mortgages, subject to which the premises were to be sold. Upon the refusal of the vendees to pay the $1,000 thus expended the vendors brought suit to declare a lien for that amount upon the premises. It was held that they were entitled to judgment, obviously because the vendees had not paid within $1,000 what they had agreed to pay. The aggregate amount of the four mortgages having been reduced by $1,000, they had obtained a conveyance of the property for that much less than the contract price.

Here the plaintiff has received the full contract price. He accepted the excess payment in cash in place of a mortgage, and I am unable to see any legal basis for á claim to interest on this excess from the date of the contract to the time the payment was made.

The order appealed from, therefore, should be reversed, with ten dollars costs and disbursements, and the motion for judgment granted, with ten dollars costs.

Ingraham, Clarke, Houghton and Scott, JJ., concurred.

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