
    William Patterson and Others, Respondents, v. J. Walter Gage Realty Company, Appellant.
    Fourth Department,
    November 11, 1914.
    Pleading— action for breach of contract for sale of real estate —judgment on pleadings improper where issue that defendant failed to make payments pursuant to contract is undisposed of.
    Where, in an action to recover damages for the breach of a contract for the sale of real estate, an allegation that the defendants failed to pay one-half of the purchase price and to secure the balance by a bond and mortgage on the premises as the contract required is denied, judgment on the pleadings cannot be directed so long as such issue remains undisposed of.
    Appeal by the defendant, J. Walter G-age Realty Company, 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 Monroe on the 12th day of January, 1914, granting plaintiffs’ motion for judgment on the pleadings, and directing that a writ of inquiry issue to assess the damages, with leave to the defendant to move at the next Special Term for contested motions to amend its answer, and staying plaintiffs’ proceedings until the hearing and determination of such motion if made.
    
      Charles L. Pierce [Carnahan, Adams, Jameson & Pierce, attorneys], for the appellant.
    
      Eugene Van Voorhis [John Van Voorhis’ Sons, attorneys], for the respondents.
   Per Curiam:

Defendant in its answer admits so much of plaintiffs’ complaint as alleges their ownership of the real estate described therein, the fact that defendant is a domestic corporation, its business and place of business, the making of the contract between the parties on or about May 10, 1913, for the sale by plaintiffs and the purchase by defendant of said real estate at the price, on the terms and at the time alleged in the ;complaint, and that on the latter date plaintiffs furnished an abstract of title showing a good and marketable title, and executed and were ready to deliver a good and sufficient warranty deed of the said premises. It interposes a general denial of the other allegations of the complaint. One of these allegations thus denied is “ That the defendant failed to perform the said contract upon its part, and has failed to pay the said contract price or any part thereof.” Following this allegation are statements alleging special damages by reason of the alleged failure of defendant to keep its contract, for the amount of which judgment is demanded. The contract, as set out in the complaint and admitted by the answer, provided that the agreed purchase price of the premises should be paid by defendant, one-half “in cash and the balance secured by a mortgage payable in five years;” the contract was, therefore, not one for the payment of money only, in,which case payment would doubtless be an affirmative defense to be pleaded and proved. (Conklingv. Weatherwax, 181 N. Y. 258; Dowling v. Hastings, 211 id. 199.) It is defendant’s breach of the contract by reason of its failure to pay the one-half of the purchase price and to secure the balance by the mortgage on the premises as the contract required, which plaintiffs have alleged. Such failure on the part of defendant it was incumbent upon plaintiffs both to allege and, if denied by defendant, to prove upon the trial. This allegation, having been put in issue by defendant’s denial, judgment on the pleadings could not properly be directed so long as that issue remained undisposed of.

Without passing upon the question whether plaintiffs’ complaint is defective in that it does not allege an actual tender of the deed, or circumstances showing .that such tender was unnecessary, we are of the opinion, for the reasons hereinbefore stated,. that plaintiff s’motion for judgment, on the pleadings should have been denied.

The order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

All concurred.

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