Opinion
October 10, 1949.
In an action by a vendee of real property to recover his down payment on the inability of the vendor to convey title on the law day, defendant counterclaims for specific performance. Defendant appeals from an order granting plaintiff's motion for summary judgment, and from the judgment entered thereon. Order and judgment reversed on the law and the facts, with $10 costs and disbursements, and the motion denied, with $10 costs. In our opinion there were questions of fact presented which could not be determined on a motion for summary judgment. ( Ballen v. Potter, 251 N.Y. 224; Schmidt v. Reed, 132 N.Y. 108; Weinheimer v. Ross, 205 N.Y. 518.) Nolan, P.J., Johnston, Sneed and Wenzel, JJ., concur; Adel, J., dissents and votes to affirm.