Oest v. Hendrick

" Seabury, J. The complaint alleges that the plaintiff was the owner of a certain piece of real property situated in the city of Hew York, and that the plaintiff and defendant entered into a written, contract which is annexed to the complaint and made a part thereof, wherein the plaintiff agreed to transfer the property in question in order to secure the defendant for certain moneys advanced to the plaintiff by the defendant, and that the plaintiff did execute and deliver to the defendant a deed to said property. The complaint fur [259] ther alleges that subsequently the aforesaid property was sold to one Marie Peters'for $7,375, which moneys were received by the defendant for the plaintiff’s account, and that after the payment of the amount of the first and second mortgages, interest, charges, assessments, taxes, etc., together.with such sums as were due defendant from plaintiff there remained in the defendant’s possession and control the sum of $717.28 which the plaintiff had duly demanded and which the defendant refused to pay. In the agreement annexed to the complaint the defendant agrees to convey back to the plaintiff the premises in question within six months from date upon payment to him of the sum due with interest thereon. We are of the opinion that the complaint states a cause of action in equity. Mooney v. Byrne, 163 N. Y. 86; Doty v. Norton, 133 App. Div. 106. As was said by Mr. Justice Scott in the similar case of Doty v. Horton, supra: “It is true that plaintiff does not call his action one to redeem, and asks for a money judgment, but the action is in legal effect one for redemption, although under the circumstances set forth in the complaint only a judgment can be obtained, and, therefore, only such a judgment -need be demanded.” In legal effect the action was one for redemption calling for the exercise by the court of equitable powers and as such was not within the jurisdiction of the 'City Court of the city of Hew York. The defendant’s motion for judgment on the pleadings should have been granted. Gut and Gebabd, JJ., concur. •Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.