Opinion
April 24, 1908.
M.H. Newman, for the appellant.
Isaac Miller, for the respondent.
This is an appeal from a judgment dismissing the complaint because it does not state a cause of action. The complaint shows these facts. The plaintiff and Steckler agreed to exchange real properties. The plaintiff accordingly delivered the deed of his property to Goodman (the assignee of Steckler), subject to two mortgages. The amount of arrears of the interest on the mortgages and the tax on that property were allowed by the plaintiff to Steckler (and Goodman). Steckler agreed to apply that amount to that purpose, but failed and neglected to do so. The plaintiff, therefore, sued Steckler and Goodman to recover that amount. The plaintiff's motion to dismiss his complaint as to Goodman was granted.
I think that the judgment should be affirmed. Under the agreement for exchange the plaintiff was bound to pay the interest on the mortgages and the taxes. Plaintiff's allowance to Steckler (and Goodman) of the amount necessary to make such payment was in effect to discharge plaintiff's obligation and his premises were taken as if presented for the exchange under the agreement therefor, freed from such charges. It does not appear that plaintiff had been damaged by the neglect or omission of Steckler to make the application of these moneys, or that after the delivery of the deed of the premises by the plaintiff to Goodman (who stood in Steckler's shoes) plaintiff remained liable either for the interest upon the mortgages or for the taxes. The cases cited by the plaintiff to sustain his contention can be discriminated. In Thomas v. Ruhl ( 30 Misc. Rep. 567) the defendants, who left the amount of the tax with the plaintiff for payment were on the bond of the mortgage and were compelled to pay the taxes in order to avoid a deficiency in foreclosure proceedings; and thus they paid the taxes twice, once to the plaintiff and again to the tax collector. In Sage v. Truslow ( 88 N.Y. 241) Styles was personally liable upon the mortgage which had been foreclosed, and the judgment for deficiency entered against Styles had been increased by the amount of the tax which Truslow had agreed to pay. The rule cited from Rector, etc., of Trinity Church v. Higgins ( 48 N.Y. 532) does not apply because, so far as the plaintiff shows, it does not appear that the agreement of Steckler was to "do any act to prevent damage to the plaintiff." The dismissal was "without prejudice and without costs." It may be that the plaintiff can state a cause of action, but I think that he has not done so in this complaint.
HOOKER, GAYNOR, RICH and MILLER, JJ., concurred.
Judgment of the Municipal Court affirmed, with costs.