Opinion
December 10, 1937.
In an action for the fixation of a lien for the amount of a down payment made in pursuance of a contract to purchase real property, for expenses in connection therewith, and for judgment in such aggregate amount, judgment dismissing the complaint unanimously affirmed, with costs. In our opinion, a question of fact was presented as to the application of the clause in plaintiff's contract relating to "a further accurate survey" as including the Lockwood survey. Upon the proof adduced with respect to this ambiguous clause, it appears that the trial court resolved the issue in favor of defendants-respondents, a finding which is not against the weight of the evidence. Hagarty, Adel, Taylor and Close, JJ., concur; Davis, J., concurs in result.