21 A.D.2d 695 | N.Y. App. Div. | 1964
In an action by the vendor under a written contract for the sale of certain lands in Rockland County, to recover damages: (a) by reason of the failure of defendants Flitt and Shell, as vendees, to close title on March 1, 1963, pursuant to the contract; and (b) by reason of said defendants’ creation of a cloud on title by their recording of the contract, allegedly in altered form, in the office of the Clerk of Rockland County, in which said defendants interposed a counterclaim and cross claim for specific performance of the contract by plaintiff (and another corporation), the said defendants appeal from an order and judgment (one paper) of the Supreme Court, dated October 7, 1963 and entered in Rockland County on or about October 8, 1963, which: (1) granted plaintiff’s motion for summary judgment, dismissing the counterclaim and cross claim; and (2) directed cancellation and discharge of said defendants’ lis pendens. A separate cause of action against the defendant Morris is not involved on this appeal. Order and judgment reversed, with $20 costs and disbursements, and plaintiff’s motion for summary judgment denied. In our opinion, the papers on this motion raise mixed questions of fact and law with respect to the counterclaim and cross claim; such questions require a plenary trial for their proper resolution. Ughetta, Acting P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.
