Turner v. Walker

Full title: CHARLES H. TURNER, Respondent, v . THOMAS S. WALKER, Appellant

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: Mar 1, 1902

70 App. Div. 306 (N.Y. App. Div. 1902)

75 N.Y.S. 260

Opinion

March Term, 1902.

A. Walker Otis, for the appellant.

Frederick G. Paddock, for the respondent.

FURSMAN, J.:

Section 982 of the Code of Civil Procedure provides that certain actions "must be tried in the county in which the subject of the action, or some part thereof, is situated." Enumerated among these are actions "to procure a judgment establishing, determining, defining, forfeiting, annulling, or otherwise affecting an estate, right, title, lien, or other interest in real property." The scope and object of this action is to compel the defendant to accept a deed of land and to pay the alleged agreed price therefor. It is not an action for damages for a breach of contract, but to enforce performance of a contract relating to lands, to compel the acceptance of a title to lands. It is in no sense an action for damages. It is simply an action to compel a specific performance of a contract relating to the sale and transfer of title to real property. If the action had been brought by the defendant against the plaintiff to compel the execution and delivery of a deed there can, of course, be no doubt that the action would be local, because section 982 expressly declares that such an action must be brought in the county where the subject-matter of the action is situated. In what way does such an action differ from one to compel the acceptance of a deed? We think the subsequent clause of the section above quoted was intended to embrace actions of this character, and, indeed, all actions affecting the transfer of title to real property not therein before enumerated.

The action, as above indicated, is not alone to recover the purchase price, certainly not to recover damages for a breach of contract, but to compel the defendant to take title to the land described in the complaint, as well as to pay the purchase price therefor.

We think, therefore, that the action is governed by section 982 and must be tried in Hamilton county, or according to the provisions of the Code in Fulton county, Fulton and Hamilton counties being regarded as one. (Code, § 232.)

The order must be reversed, with ten dollars costs and disbursements, and the motion granted.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to appellant to abide event.