Majority
p. 766(34 Misc. Rep. 91.) KAPLAN v. COHEN. (Supreme Court, Special Term, Kings County. February, 1901.)
Headnote
Action against Vendor—Complaint.A complaint alleged that defendant .made a written contract to convey real estate, but could not do so because he could not give good title, and that in such agreement he acknowledged the part payment by plaintiff of a certain amount, but did not allege such payment to have been made, or that plaintiff searched the title, and incurred expense therein. It demanded a larger sum than the part payment. Held not to state a cause of action.
Action by Louis Kaplan against Gottlieb Cohen. Motion to vacate a lis pendens.
Granted.
Harry Zirn, for plaintiff.
Weschler & Burstein, for defendant.
The complaint alleges that the defendant entered into a written contract to convey certain real estate-to the plaintiff, and that he failed to do so on the contract day because he could not
p. 767
give good title. There is also the following allegation: "and in said agreement the defendant acknowledged the payment by the plaintiff •of $100 in part payment of said premises.” This is not an allegation of the payment of $100 by the plaintiff to the defendant. Nor is there any allegation that the plaintiff searched the title and incurred expense therein. The prayer for judgment for $167.50 is therefore based on nothing. The lis pendens is filed on the theory that the plaintiff may be given a lien on the land for the amount he paid on account and" his expenses in searching the title; but as the complaint alleges no such payment or expense there is no cause of action alleged.
The motion is granted, with $10 costs.