13 A.D.2d 523 | N.Y. App. Div. | 1961
In an action for specific performance of a contract by defendant to sell a parcel of land to plaintiffs and to erect a house thereon, plaintiffs appeal from a judgment of the Supreme Court, Nassau County, entered June 20, 1960, upon the decision of the court after a nonjury trial, which: (a) confines their recovery to the sum of $1,795, consisting of their $1,500 down payment, an allowance of $200 for their attorney’s fee, and $95 costs; and (b) fails to grant them specific performance. Judgment modified on the facts as follows: (1) by striking out the first and second decretal paragraphs which direct recovery of said sum of $1,795 by plaintiffs from defendant and which direct plaintiffs, upon the payment of said sum, to surrender to defendant the latter’s $1,500 refund check now in plaintiffs’ possession; (2) by substituting a paragraph decreeing that plaintiffs shall recover from defendant the sum of $1,850, plus $95 costs as taxed, making a total of $1,945; and (3) by substituting another paragraph directing that upon payment of said sum of $1,945 to plaintiffs by defendant, the plaintiffs shall surrender to defendant the latter’s $1,500 refund check now in plaintiffs’ possession. As so modified, the judgment is affirmed, with costs to plaintiffs. Findings of fact which may be inconsistent herewith are reversed and new findings are made as indicated herein. A provision in the contract of September 20, 1958, for the benefit of the purchasers, rendered the contract void if the purchasers were not approved for a mortgage. The defendant undertook to get a commitment from a specific bank. Despite the outstanding contract and its unquestioned validity, the defendant deliberately