Estates v. Hunold

Bijur, J. This action was brought by plaintiff to recover five intermediate instalments of ten dollars each, payable monthly on the purchase by defendant.from plaintiff of a lot. The total purchase price was two hundred dollars, and defendant had already paid thirty dollars. Respondent (defendant) contends that plaintiff is not entitled to recover at law, what he calls the “ purchase price ” of real estate until a deed has actually been tendered or delivered, intimating that plaintiff’s remedy may lie in equity for specific performance. It is true that there is some conflict in the authorities on that point. Cong. Beth Elohin v. Central Presb. Church, 10 Abb. N. C. 484, 494, 500. and the cases which follow it indicate that a recovery for such a cause of action cannot be had at law. Richards v. Edick, 17 Barb. 260 (disapproved in the case last cited, but cited with approval in the Court of Appeals, 171 N. Y. 262, 299) is to the contrary effect. [65] But regardless of the conflict, it is .apparent that these cases have reference only to an action brought to recover the entire purchase price, and that the reasoning would not apply to one to recover mere intermediate instalments. Suits to recover the latter before tender of the deed are expressly approved in Paine v. Brown, 37 N. Y. 228; Eddy v. Davis, 116 id. 247; Loeffler v. Bleier, 63 Misc. Rep. 352; Loeffler v. Snyder, 65 id. 62. Judgment reversed and new trial ordered, with costs to appellant to abide the event. Seabury and Lehman, JJ., concur. Judgment reversed.