
    Camp v. Redmond.
    
      (Supreme Court, General Term, First Department.
    
    January 6, 1891.)
    Counter-Claim—Pleading—Affirmative Cause of Action.
    Defendant purchased real estate at auction, paying a deposit, and agreeing to complete the purchase, November 11,1889. In an action by the vendor for breach of the contract, he set up, as a counter-claim, that plaintiff, on December 10, 1889, sold the property to a third person, and still retained defendant’s deposit, but did not allege that defendant himself was ready and willing to perform at the time appointed. Held,, on demurrer to the counter-claim, that no affirmative cause of action was stated. Daniels, J., dissenting.
    Appeal from special term, Mew York county.
    Action by Hugh M. .Camp against Michael Redmond. Defendant appeals from an interlocutory judgment sustaining a demurrer to a counter-claim in his answer.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Forster & Speir, {Henry A. Forster, of counsel,) for appellant. James C, Be la Mare, for respondent.
   Daniels, J.

The action is for damages for the non-performance of a contract made for the sale and purchase of land. The sale was made by auction, and it was to be completed on the 11th-of November, 1889. It is alleged in the complaint that the defendant in that respect failed to fulfill the terms of his agreement to accept the deed, and otherwise perform on his part. But the ability and readiness of the plaintiff to convey, the property has been put in issue by the answer of the defendant. The defendant then, by way of a set-off, partial defense, and counter-claim, further answered that the 10 lots described in the complaint were knocked down to. him at public auction by the plaintiff’s agent; and the answer then proceeded to state that plaintiff, in selling such lots, agreed to convey them to the purchaser at such auction sale on receiving the purchase money, less 60 per cent, thereof, which could remain on bond and mortgage, at the option of the purchaser; that the defendant paid to the plaintiff $300 on account of the purchase money; on information and belief, that on December 10,1889, plaintiff sold the property at public auction too third person, and thus put it out of his power to perform his contract and convey the property in fee to the defendant, and that plaintiff retained, and still retains, $300 paid to him by the defendant on account of the purchase money; that the defendant is entitled to have the $300 offset against any recovery that the plaintiff'may obtain in this action, if any, and, if plaintiff should fail to recover, defendant is entitled to recover said $300 from the plaintiff. Wherefore the defendant demands judgment against the plaintiff for the dismissal of the complaint, and the sum of $300, besides the costs of the action. The' plaintiff demurred to this answer, on the ground that it failed to state a cause of action, and the demurrer was sustained by the special term. No failure to perform the contract has been in any form admitted by the defendant, nor does it appear otherwise than by the allegations of the complaint, upon which issue has been taken by the answer, how the contract was carried along to the month of December, 1889. It cannot be inferred, from what has been set forth in this part of the. answer, that the defendant was at any time in default on his part; for no such default has been admitted, either expressly or by implication. But it is apparent from this part of the answer that the lots continued to be owned by the plaintiff up to the 10th of December, 1889, and that he then sold them to another person. . This put it out of his power to perform the contract he had made for their sale to the defendant, and dispensed with an offer, in the averment of readiness, to perform on his part. Weeks v. Little, 89 N. Y. 566; Woolner v. Hill, 93 N. Y. 576. • It placed the plaintiff himself in default, as the case has in this manner been stated, and entitled the defendant to rescind, and recover back the $300 paid by him on the purchase price of the lots. And he had the right to interpose that as a counter-claim in this action. The demurrer, therefore, should not have been sustained; and the judgment should be reversed, and the demurrer overruled, with costs, but with leave to the plaintiff to withdraw it, and reply in 20 days on payment of the costs of the demurrer and the appeal.

"Van Brunt, P. J.

I cannot concur with the conclusion arrived at by Mr. Justice Daniels, that, under the facts alleged in the answer, the defendant would be, if they were true, entitled to recover the amount of his deposit. The facts seem to be that the plaintiff contracted to convey to the defendant certain real estate, and the defendant contracted to pay for the same on the 11th day of November, 1889, and paid $300 down. There is no allegation in the answer setting up counter-claim or set-off that the defendant ever was ready to take the property, or that the plaintiff failed in any respect in reference to his part of the contract. It is urged by Mr. Justice Daniels that the defendant has not admitted that he was in default. This is true, but in his affirmative cause of action he has not alleged that he wfas ready and willing to perform at the time appointed. It is necessary for him to allege and observe this to succeed in his affirmative cause of action. All that is alleged is that the plaintiff sold the property to somebody else on the 10th of December. Where a seller makes default, the purchaser is not bound to wait forever to dispose of the property to another without giving the purchaser a cause of action. The judgment should b.e affirmed, with costs.

Brady, J., concurs.  