| N.Y. App. Div. | Mar 16, 1959
Action by the vendee named in a contract for the purchase and sale of real property to recover money deposited upon the execution thereof on the ground that he was unable to obtain a mortgage loan as provided in the contract. The action is against a third-party depositary who held the money under an escrow agreement. The appeal is from an order granting a motion for summary judgment striking out the answer, and from the judgment entered thereon. Order and judgment affirmed, with $10 costs and disbursements. No opinion. Beldock, Murphy, Ughetta and Hallinan, JJ., concur; Nolan, P. J., dissents and votes to reverse the order, to deny the motion and to vacate the judgment, with the following memorandum: The question whether respondent made a bona fide effort to procure the mortgage, which he now claims he was unable to obtain (cf. Wigand v. Bachmannn-Bechtel Brewing Co., 222 N.Y. 272" date_filed="1918-01-08" court="NY" case_name="Wigand v. . Bachmann-Bechtel Brewing Co.">222 N. Y. 272, 277), should not be summarily decided on a motion pursuant to rule 113 of the Rules of Civil Practice (cf. Suslensky v. Metropolitan Life Ins. Co., 180 Misc. 624" date_filed="1943-06-18" court="N.Y. App. Term." case_name="Suslensky v. Metropolitan Life Insurance">180 Misc. 624, 626, affd. 267 A.D. 812" date_filed="1944-01-28" court="N.Y. App. Div." case_name="People ex rel. Emigrant Industrial Savings Bank v. Sexton">267 App. Div. 812; Newman v. Newark Fire Ins. Co., 281 A.D. 852" date_filed="1953-02-24" court="N.Y. App. Div." case_name="Newman v. Newark Fire Insurance">281 App. Div. 852; Rosenthal v. Horlick, 7 A D 2d 924). [14 Misc. 2d 964" date_filed="1958-08-28" court="N.Y. Sup. Ct." case_name="Falk v. Goodman">14 Misc 2d 964.]