7 A.D.2d 1014 | N.Y. App. Div. | 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, 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, 626, affd. 267 App. Div. 812; Newman v. Newark Fire Ins. Co., 281 App. Div. 852; Rosenthal v. Horlick, 7 A D 2d 924). [14 Misc 2d 964.]
