Zeiser v. . Cohn , 207 N.Y. 407 ( 1913 )

The question which this appeal presents is whether the plaintiff is entitled to equitable relief in the nature of a vendor's lien upon certain real estate, which had been conveyed by his debtor, Jacob Cohn, to another; in part consideration of which the grantee "agreed to pay and to save harmless the said Jacob Cohn of and from certain debts and liabilities in said agreement set forth." At the time of this conveyance, June 2d 1897, the plaintiff's claim is found to have been unliquidated and disputed; but it is, also, found that the agreement of the grantee of the property contained his name. A suit was commenced by the plaintiff against Jacob Cohn and resulted in a judgment, in 1902, in the former's favor and it is found that, subsequent to the commencement of the suit, he was informed concerning the agreement of Jacob Cohn's grantee. After obtaining judgment against Jacob Cohn and being unable to enforce its payment, by execution and proceedings thereupon, the plaintiff instituted this action in equity to have the judgment debt declared to be a lien upon the property conveyed by Jacob Cohn and held by the defendants; into whose hands it had come, either under the will of Theresa Cohn, Jacob Cohn's grantee, or through mesne transfers. The trial court, holding the plaintiff entitled to a vendor's lien upon the real estate transferred by Jacob Cohn in 1897, adjudged the debt to be a lien and charge upon certain surplus moneys, "proceeds of the foreclosure and sale of the premises described in the complaint." This judgment has been affirmed by the Appellate Division and the question, upon this appeal, is whether the respondent was entitled to the equitable relief decreed. I think that he was not. By the promise of Jacob Cohn's grantee to pay his debt to the plaintiff, among other creditors named in her agreement, the promisor assumed and made that debt her own and an action at law, adequate and complete, would lie against her for its recovery. (First National Bank v. Chalmers, 144 N.Y. 432.) She, then, became primarily liable to the plaintiff, and Cohn stood, in relation to the agreement, as surety. The plaintiff has not shown that he had, unsuccessfully, resorted to an action at law against the grantee; nor does he aver any facts to show that he was excused from bringing such an action, by the intervention of some cause cognizable at law, or in equity. The court found that he was informed of the agreement to pay him and it must be assumed that the promisor was able to perform. Not having exhausted his plain legal remedy, I do not think that the plaintiff had a standing to ask the aid of a court of equity to apply the extraordinary remedy of a vendor's lien in his behalf. Plaintiff's claim against Jacob Cohn being unliquidated and disputed at the time of the latter's transfer of his property, no lien could well attach. Nor was it necessary that it should; for, so far as it appears, he could have recovered payment from Cohn's transferee upon her agreement to pay. Not having adopted, nor sought to enforce, her agreement, I do not see how the plaintiff can well assert the right to a vendor's lien upon the property conveyed for the amount of his unpaid debt. A contract is essential to the existence of a vendor's lien for the unpaid purchase money and the vendee's right to a lien, upon the default of the vendor, to the extent of any payment made, has only recently been recognized by this court. The contract between the parties is the essential basis of the lien, in either case, to protect vendor, or vendee, upon performance of their respective agreements. (Davis v. Rosenzweig Realty Operating Co.,192 N.Y. 128; Elterman v. Hyman, Ib. 113.) To extend the right, under the circumstances of this case, seems to me to be carrying the equitable doctrine too far. The doctrine of a vendor's lien is an anomaly in the law, any way. Plaintiff was not a party to any contract, upon which he might predicate a claim for a lien, and he does not appear to have been remediless at law.

Perhaps to repeat somewhat, I say, upon what theory can the plaintiff claim to be entitled to a vendor's lien; that is, to stand in Jacob Cohn's shoes? Cohn's transfer of the property was absolute and perfectly good as to the plaintiff. The plaintiff's remedy was, then, against the transferee; whose agreement inured to his benefit; for it ran to him. Until shown to be unenforceable, how could the plaintiff claim to be without an adequate remedy at law?

I advise the reversal of the judgment and that a new trial be ordered; the costs to abide the event.

CULLEN, Ch. J., WILLARD BARTLETT and CHASE, JJ., concur with WERNER, J.; HISCOCK and COLLIN, JJ., concur with GRAY, J.

Judgment affirmed.