Trembath v. Berner

• Court: New York Court of Appeals
• Citation: 240 N.Y. 618,148 N.E. 729
• Parties: TREMBATH v. BERNER et al.
• Decision Date: 05 May 1925

240 N.Y. 618

148 N.E. 729

TREMBATH

v.BERNER et al.

Court of Appeals of New York.

May 5, 1925.

Action by Aulda J. Trembath against Charles M. Berner and another. From a judgment of the Appellate Division (208 App. Div. 822, 203 N. Y. S. 530), reversing, as matter of law, a judgment of the Special Term for plaintiff, and dismissing the complaint, on an appeal by defendant named, plaintiff appeals.

Modified, and affirmed as modified.Appeal from Supreme Court, Appellate Division, Third department.

H. C. Stratton, of Oxford, for appellant.

Edmund B. Jenks, of Whitney Point, and Herbert C. Kibbe, of Sidney, for respondent.

PER CURIAM.

[1] 1. The complaint sufficiently states a separate cause of action on a promissory note.

(a) The allegation that ‘the plaintiff is now the holder and owner of said note’ is sufficient, without alleging the manner in which plaintiff acquired title. So long as the fact of ownership is unequivocally stated, no particular form is necessary.

[2][3] (b) The fact that a promissory note represents a portion of the purchase price of lands sold on an executory agreement to convey in the future does not render the complaint defective, unless it appears on the face thereof that the vendor has deferred action until the maturity of the last installment, upon the payment of which a conveyance is due. Ewing v. Wightman, 167 N. Y. 107, 111,60 N. E. 322. The court should not read the second cause of action in order to incorporate the allegations thereof into the first cause of action, which stands on its own footing.

2. The complaint does not sufficiently state a separate cause of action to recover possession of real property. It appears from the contract of sale, which is made a part of the complaint, that the legal title to the premises is in a third party, and it does not appear that plaintiff is entitled to a deed thereof. The vendee in possession is therefore not estopped to dispute the plaintiff's title. Ejectment will not lie when based on a purely equitable title.

[6][7] 3. The complaint does not sufficiently state a cause of action for the purpose of enforcing plaintiff's equitable rights by foreclosure. No offer to convey is made in the complaint. Freeson v. Bissell, 63 N. Y. 168; Ewing v. Wightman, supra. While the specific objection was not made on the trial, it is evident that the objection could not have been obviated by an amendment of the complaint to meet the difficulty. But on a new trial it may be that pla...