Opinion
March 27, 1961
In an action by the vendee named in a contract for the purchase and sale of real property, to recover the money paid by him upon the signing thereof, on the ground that he was unable to obtain a mortgage loan as therein provided, defendant appeals: (1) from an order of the County Court, Westchester County, dated April 19, 1960, granting plaintiff's motion, pursuant to rule 113 of the Rules of Civil Practice, for summary judgment striking out the answer, and denying defendant's cross motion for summary judgment; and (2) from the judgment of said court, entered April 20, 1960, on said order. Order modified by striking out the first decretal paragraph granting plaintiff's motion for summary judgment, and by substituting therefor a paragraph denying plaintiff's said motion; and judgment vacated. As so modified, the order is affirmed, without costs. The record presents issues of fact which should be determined after trial (cf. Falk v. Goodman, 7 N.Y.2d 87). Nolan, P.J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.