Miele v. Deperino

Headnote

In an action to rescind a contract for the purchase of real estate and to recover §200 purchase money paid, and §203.51 expenses of search and disbursements, the complaint also alleged that plaintiff was by the terms of the contract to receive the rent of the premises from June 1st to 15th, and without alleging the amount thereof asked to recover the same. The judgment was for defendant. Held, that the amount involved was less than §500, and so the judgment was not reviewable here; that as plaintiff sought to rescind the contract he could not at the same time claim the rent of the premises he would have been entitled to had he performed it.

Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made the second Monday of December, 1891, which affirmed a judgment in favor of defendants entered upon a decision of the court on trial at Special Term.

The following is the opinion in full:

“ On the 14tli day of May, 1891, the plaintiff entered into a contract with the defendants to purchase from them certain real estate situated in Brooklyn; and at the time of the execution of the contract he paid them two hundred dollars to apply upon the purchase price. The deed of the real estate was by the terms of the contract to be delivered to the plaintiff by the defendants on the 1st or the 15th of June at the election of the plaintiff. Subsequently the time for the delivery of the deed was postponed to July 3d, and on that day the defendants tendered a deed of the real estate to the plaintiff, but he refused to accept it claiming that the defendants did not have good title to the real estate. He then demanded repayment of the sum of $200, and the further sum of $203.51 for his expenses and disbursements in examining the title to the real estate, and these sums not being paid,

about the 17th day of July, 1891, he commenced this action to recover the amount of them.

“ These sums do not amount to $500, and as the action does not affect the title to real property, or an interest therein, this court has no jurisdiction to entertain this appeal. (Code, §191.)

“ By the terms of the contract the plaintiff was to have the rent of the real estate from the first to the fifteenth day of June, and in his prayer for relief he also asks to* recover such sum as may be found due for the rent during that time. He does not allege the amount or the value of the rent, and he sets forth no facts entitling him to recover the rent. He cannot repudiate or rescind the contract which gave him the rent and at the same time have all the benefits of the contract to which he would be entitled if it were performed. Eo fact is alleged in the complaint showing that the plaintiff is entitled to recover more than the two items mentioned,

“ The appeal should therefore .be dismissed with costs.”