Summary
In Rizzo v. Landmark Realty Corp. (1950) 277 App. Div. 1094 [101 N.Y.S.2d 151], the court held the Uniform Act precludes a vendor from specifically enforcing a real estate sales contract when a material part of the subject property has been destroyed, but it does not destroy any common law rights of the purchaser to specific performance with abatement.
Summary of this case from Dixon v. Salvation ArmyOpinion
November 16, 1950.
Present — Taylor, P.J., Love, Vaughan, Kimball and Piper, JJ.
Judgment and order reversed on the law, with costs to the appellants, and defendant's motion for judgment on the pleadings denied, with $10 costs. Memorandum: We feel that the Special Term was in error in granting defendant's motion for judgment on the pleadings. Section 240-a Real Prop. of the Real Property Law does not deprive a vendee of the right of specific performance with abatement. Said section (subd. 1, par. [a]) renders unenforcible insofar as the vendor is concerned the right to specific performance when the loss is material. It does not, however, destroy any common-law right of the vendee to specific performance with abatement. (See Bostwick v. Beach, 103 N.Y. 414, 422, and Warren v. Hoch, 276 App. Div. 607.) All concur. (Appeal from a judgment dismissing plaintiffs' complaint in an action for specific performance.)