Opinion
December 9, 1975
Two orders, Supreme Court, New York County, each entered April 16, 1975, the first granting defendant-respondent's motion for summary judgment and the second denying plaintiffs-appellants' motion, unanimously affirmed. Respondent shall recover of appellants one bill of $60 costs and disbursements of these appeals. The action is for damage for alleged breach of contract in refusal to grant a mortgage at an agreed rate after postponement of a scheduled closing, the damage claimed having been the difference between that rate and the higher rate charged for a mortgage procured later after the commitment and an extension thereof had expired. Two dates are significant: an earlier date of projected closing of title, at which defendant did not appear, and a later one at which plaintiffs could not close because of unavailability of a marketable title, a receiver in sequestration being in possession of the property. It appears, however, that plaintiffs had been in no more favorable position in respect of availability of marketable title on the earlier date, and plaintiffs would not have been in a position to accept the mortgage on either date. Defendant's earlier failure to appear and grant the mortgage could not in these circumstances be deemed a breach in view of plaintiffs' inability to accept the commitment during its extended period of viability.
Concur — Stevens, P.J., Markewich, Tilzer, Lane and Nunez, JJ.