King v. Island Park Associates, Inc. , 237 A.D. 910 ( 1933 )

— Judgment reversed on the law and the facts, with costs of the appeal, and judgment directed for plaintiff for the recovery of the payments made by her, with interest and without costs. The defendant made no claim for specific performance and rested upon its ability to convey a marketable title at the closing. The effect of its position was to claim a forfeiture of all of the payments made by plaintiff. It was, therefore, incumbent upon the defendant to be in the position of claiming complete and strict compliance with the contract as of the law day. (Abramowitz v. Fraccalvieri, 227 App. Div. 418.) It is conceded that at the time of the closing there were unsatisfied judgments of record against the defendant. The trial court also found that fact. This defect rendered the title unmarketable at the time of closing, and the plaintiff was then and there entitled to the return of her money. Findings of fact and conclusions of law inconsistent herewith, particularly finding of fact numbered 25, at folio 95, are reversed and new findings and a conclusion accordingly will be made; order to b.e settled on notice. In view of this determination, the appeal from the order denying motion for summary judgment is dismissed, without costs. Lazansky, P. J., Kapper, Hagarty, Scudder and Davis, JJ., concur.