Opinion
February, 1906.
Charles B. Harris, for appellant.
Everett Caldwell, for respondent.
The plaintiff paid fifty dollars to defendant from whom he obtained a receipt therefor, as follows:
"BROOKLYN, N.Y., May 8, 1905.
"Received from Hyman Rosenblum Fifty dollars on account of contract No. 145 Central Avenue, Brooklyn, Eight hundred and fifty dollars to be paid by signing over the contract on the 9th day of May, 1905, at 44 Court Street at Mr. Caldwell's office. Commission to be paid by signing over the contract.
"(Sd.) HENRY LIENER. "(Sd.) HYMAN ROSENBLUM."
Plaintiff sued to recover the fifty dollars so paid, on the ground that he had agreed to purchase of defendant the house 145 Central Avenue for $11,200, by taking from defendant an assignment of a contract of purchase of said premises which defendant then had; that said fifty dollar had been paid as a deposit for such assignment upon the representations of defendant that the rentals of said house aggregated annually $1,300, and that said representations were untrue.
The parties met on May ninth when plaintiff told defendant that the rentals amounted to $1,200 and not $1,300 a year and, according to plaintiff's testimony, the defendant, when confronted with plaintiff's statement, did not deny that the rentals were $1,200, but answered that he had said that he had told plaintiff that the property could be made to rent for $1,300.
This the plaintiff stated was not the representation and, although defendant was ready to assign the contract, plaintiff refused to accept it because of the alleged misrepresentation and demanded the return of the deposit.
At the conclusion of plaintiff's case, the complaint was dismissed on the ground that plaintiff failed to show that the actual rents were not $1,300 per annum and plaintiff duly excepted.
I think the learned justice was in error. The conversation between the plaintiff and defendant as detailed by plaintiff clearly indicated that defendant's answers and conduct, when plaintiff claimed that the premises only rented for $1,200 instead of $1,300, were such as to establish an acquiescence or admission of the truth of these assertions. The defendant was put to his proof to deny the facts as to alleged misrepresentations.
It also seems to me, irrespective of the foregoing considerations, that the receipt did not constitute a valid contract for the sale of the lands. Aside from the uncertainty of its meaning, there is nothing in it which obligated the defendant to assign the contract or give a deed of the premises.
The deposit was given rather with a view to bind the plaintiff to accept an assignment of the contract, provided defendant was ready to deliver it. The situation is somewhat analogous to that presented in the case of Weinberg v. Greenberger, 47 Misc. 117.
This case may be distinguished from Lawrence v. Miller, 86 N.Y. 131, 139, in that the money there sought to be recovered was paid under a valid, enforceable contract; whereas here the plaintiff had no contract enforceable in law. The receipt fails to indicate what contract affecting 145 Central Avenue is meant, or what the nature of the contract was. It might have been a building contract, or one for a lease or any other conceivable contract that might exist with reference to the property in question, and there is nothing in it which bound defendant to execute an assignment.
The judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.
SCOTT and GIEGERICH, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.