Opinion
November, 1928.
Judgment reversed upon the law and the facts and a new trial granted, costs to abide the event. This court has heretofore held that the complaint in this action states a cause of action ( 223 App. Div. 853). Plaintiff, by proof of the allegations of his complaint, presented a prima facie case, and he was not required to establish that the vendor either performed or offered to perform by the tender of a deed to the premises, for any failure upon his part to perform under the contract is not attributable to this plaintiff. Furthermore, defendant Miller might enforce specific performance by the vendor. ( Epstein v. Gluckin, 233 N.Y. 490.) Lazansky, P.J., Rich, Young, Seeger and Scudder, JJ., concur.