| N.Y. App. Div. | Dec 3, 1945
In an action for adjudication of a vendee’s lien and foreclosure thereof, to which defendants, vendors, counterclaim for specific performance, judgment dismissing the complaint and adjudging that defendants are entitled to retain the down payment of $1,000, insofar as appealed from, reversed on the law, with costs, the counterclaim dismissed, and judgment for plaintiff granted in the sum of $1,000, with interest from October 10, 1944, and in the further sum of $99.66, for amount paid by plaintiff for title search, without costs. We are of opinion that the saving clause “ provided none of the subject clauses render title unmarketable ” has application to all of the express provisions subjecting the conveyance, inclusive of that relating to existing restrictions of record. The setback restriction is an encumbrance and necessarily such as would render title unmarketable. (O’Hara v. Bronx Consumers Ice Co., 254 N.Y. 210" date_filed="1930-07-08" court="NY" case_name="O'Hara v. Bronx Consumers Ice Co.">254 N. Y. 210, 213; Kountze v. Helmuth, 67 Hun 343" date_filed="1893-02-17" court="N.Y. Sup. Ct." case_name="Kountze v. Helmuth">67 Hun 343, affd. 140 H. Y. 432; Wetmore V. Bruce, 118 N.Y. 319" date_filed="1890-01-14" court="NY" case_name="Wetmore v. . Bruce">118 N. Y. 319.) Hagarty, Acting P. J., Carswell, Johnston, Adel and Lewis, JJ., concur.