Opinion
June, 1927.
Order of the Appellate Term affirming judgment of the Municipal Court of the City of New York, borough of Richmond, reversed upon the law and the facts, with costs, and judgment directed for plaintiff in the sum of seventy-nine dollars and eight cents, with interest from July 22, 1925, with ten dollars costs in the Municipal Court and costs of the appeal to the Appellate Term, and defendants' counterclaim dismissed. We construe the agreement under which defendants were in possession of the premises as a contract of sale, and hold that the sum of three hundred dollars paid upon the signing of the agreement was a down payment which defendants, by their breach of the agreement in not making the payments called for by the agreement, may not recover back. Kelly, P.J., Young, Kapper, Lazansky and Hagarty, JJ., concur.