Maccabee v. Lipman

Michael F. Walsh, J. This is a motion to change the venue of this action from Kings County to Dutchess County pursuant to section 183 of the Civil Practice Act and rule 146 of the Rules of Civil Practice, on the ground that this action is to “ recover or to procure a judgment establishing * * * a lien or other interest in real property in Dutchess County.” Plaintiff is suing to rescind a written executory contract to purchase real property, for a lien on said premises for the down payment and expenses, and for a judgment of $1,500 and interest. Plaintiff is not seeking a judgment involving a change in the title of real property. In an analogous case it was held the lien which plaintiff seeks is not within subdivision 9 of section 183. (See Hogg v. Mack, 53 Hun 463; also 4 Carmody on New York Practice, § 1157; Nassau Hotel Co. v. Barnett, 164 App. Div. 203; [918] Maier v. Rebstock, 68 App. Div. 481.) This case involves an executory and not an executed contract. (Birmingham v. Squires, 139 App. Div. 129.) Motion denied.