Opinion
November, 1930.
Judgment reversed upon the law and the facts, with costs, and complaint dismissed, with costs. Assuming that the complaint is in the alternative, either for specific performance or the foreclosure of a vendee's lien, the latter relief was based upon the vendor's inability to give a marketable title. At the time of the trial and for a considerable period theretofore, the title was perfect even though the franchise tax had not been receipted for by the State Department of Taxation and Finance, the payment of which was, without dispute, made prior to the day of closing. It was too late to make an election at the trial. The remedies were inconsistent. ( Whalen v. Stuart, 194 N.Y. 495, 505.) The plaintiff, renouncing any desire for specific performance which it could have had at the trial, was not entitled to the alternative judgment of foreclosure of a vendee's lien where the title at that time was marketable. (See, also, Switzer v. Commissioners for Loaning Certain Moneys, 134 App. Div. 487, 489.) Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. Lazansky, P.J., Kapper, Carswell and Scudder, JJ., concur; Hagarty, J., concurs in reversal but dissents as to the dismissal of the complaint, upon the ground that in any event the plaintiff is entitled to judgment for specific performance. Settle order on notice.