In an action to foreclose a vendee's lien and to recover the down payment and expenses, plaintiff's motion for summary judgment on the second cause of action was denied. Order reversed on the law and the facts, with $10 costs and disbursements, and the motion granted, with $10 costs. The contract signed by plaintiff and defendant provided in part that the property was sold "Subject to covenants and restrictions contained in former recorded deeds affecting said premises, providing they do not render title unmarketable". It is not disputed that a former deed contains a covenant "that there shall not be erected upon any portion of said premises any building for the sale of intoxicating drinks or garden for the sale of ale or beer * * *." The title, therefore, was unmarketable ( Isaacs v. Schmuck, 245 N.Y. 77; Golden Development Corp. v. Weyant, 269 App. Div. 103 9, affd. 295 N.Y. 845) and, as there is no issue of fact, plaintiff's motion should have been granted.

Lewis, P.J., Hagarty, Johnston and Nolan, JJ., concur;