108 N.Y.S. 325 | N.Y. App. Div. | 1908
The plaintiff (vendee) appeals from a judgment for the defendants on the merits in an action in the Municipal Court to recover $400 paid on account of a contract under seal for the conveyance of realty. The action rests upon non-performance. Heither party offered evidence, but upon the allegations and the admissions of the written pleadings and the admissions at the trial, both presented the facts ..for judgment. It is conceded that the. question of non-performance hangs upon the fact that the defendants were in possession of a part of the premises at the time the parties met to pass the title under their contract. The vendors had agreed to deliver a full covenant and warranty deed of the premises, free and clear of all incumbrances save the mortgages and certain monthly tenancies.
. The judgment is affirmed, with costs.
Woodward, Hooker, High and Miller, JJ., concurred.
Judgment of the Municipal Court affirmed, with costs.