105 N.Y.S. 692 | N.Y. App. Div. | 1907
The plaintiffs, as vendors, brought this action to compel specific performance of an executory contract of purchase and sale of real property, alleging a breach on the part of the defendant. The defendant set up a counterclaim, alleging that the plaintiffs-were in default and asking for-a return of his deposit and for damages. -On the trial the plaintiffs, having previously sold the property, withdrew their demand for specific performance, and the court, without taking any proof on the question of which party was first in default, gave the defendant judgment for the amount .of his deposition the theory that the commencement of the suit for specific performance was a recognition of the existence of the contract and that the sale of the property- thereafter was a rescission which gave the defendant the right to a return of his deposit. ■'
Jenks, Hooker, Gaynor and Rich, JJ., concurred.
• Judgment reversed and. new trial granted,-costs to abide.the final award of costs. . , '