Opinion
April 8, 1963
In an action by the vendee in a contract for the sale of real property, to recover his deposit and for other relief, on the ground that he was unable to obtain a mortgage loan from the lending institution designated by the defendant, as provided for by the contract, the defendant appeals from a judgment of the County Court, Westchester County, entered June 19, 1962, upon the decision of the court after a nonjury trial, in favor of the plaintiff for $4,311.60. Judgment affirmed, with costs. (For prior appeal in this action, see 13 A.D.2d 543.) To conform the pleadings to the proof, the court on its own motion ( Thorne Neale Co. v. New York Southern Coal Term. Corp., 270 A D 816, affd. 295 N.Y. 977) directs that the amended complaint be further amended as follows: (1) by adding to its seventh paragraph the allegation that "Thereafter the County Federal Savings and Loan Association requested additional information regarding the income of the plaintiff and the plaintiff complied with such request;" and (2) by excising from its eighth paragraph the following allegations: That thereafter "the County Federal Savings and Loan Association requested additional information regarding the income of the plaintiff and after the plaintiff complied with such request and furnished all the full and true information required". The trial court's finding that "defendant designated the lending institution to which to apply for a mortgage loan" is modified to read that "defendant designated the lending institution to which the plaintiff could apply for and from which he might obtain a mortgage loan." Ughetta, Acting P.J., Kleinfeld, Brennan, Rabin and Hopkins, JJ., concur.