Belanewsky v. Gallaher , 105 N.Y.S. 77 ( 1907 )

Tompkins, J.

The defendants demur to the complaint on the ground that it fails to state facts sufficient to constitute a cause of action. The action is in equity for a judgment, decreeing the specific performance of a contract for the sale of real property.

The defendants urge in support of the demurrer that the complaint fails to specifically allege that the plaintiff has no adequate remedy at law. Such an allegation is not necessary in an action to compel the specific performance of a contract to convey real estate.

The court will specifically enforce an agreement to sell real estate, even where the vendor is financially responsible and the vendee has an adequate remedy at law for damages. Jones v. Barnes, 105 App. Div. 287.

The second point is that the action was prematurely brought.

The complaint alleges that the deed was to be delivered “ on or before the first day of February, 1906,” and the defendants’ claim is that the action was commenced in December, 1905. There is nothing in the complaint showing when the action was commenced. It does not “ appear upon the face ” of the complaint that the action was commenced prior to February, 1906.

To sustain a demurrer upon the ground that the complaint fails to state facts sufficient to constitute a cause of action, the court cannot refer to the date of the summons or verification; neither one is a part of the complaint. The objection to the sufficiency of the complaint must “ appear upon the face thereof;” besides, the complaint alleges that the defendant has refused to perform the contract, and has refused to comply with the preliminary terms thereof, and has tendered back the deposit paid at the time that the contract was signed. By a repudiation of the contract, the defendants have, in my opinion, given the plaintiff a right to bring the action

Demurrer overruled, with leave to the defendants to answer, within twenty days, upon payment of costs.