Opinion
March 14, 1977
In an action by contract vendees, inter alia, to compel defendants to return their down payment (the first cause of action), or, in the alternative, to foreclose their vendees' lien (the second cause of action), plaintiffs appeal from an order of the Supreme Court, Kings County, dated May 5, 1976, which denied their motion (1) for summary judgment as to their first two causes of action and (2) to dismiss defendants' counterclaim. Order reversed, on the law, without costs or disbursements, and motion granted; plaintiffs are awarded judgment as to their first two causes of action, the counterclaim is dismissed, and the action is remanded to Special Term for further proceedings consistent herewith. The one and one-half foot encroachment of the front of the garage upon the public street is an incurably defective bar to clear title (see General City Law, § 38-a; cf. Cohen v Kranz, 12 N.Y.2d 242). Defendants' proposed remedy of removing the encroachment and adding one and one-half feet to the rear of the garage would constitute an alteration from, and a substitute for, what was contracted for. The one and one-half foot portion to the rear, presently unimproved, would be put to a use other than that contemplated by plaintiffs if such change were made. Rabin, Acting P.J., Shapiro, Titone and O'Connor, JJ., concur.