Opinion
May 8, 1961
In an action by the vendee under a contract for the sale of real property, to recover the down payment on the ground that the vendor breached its obligation to apply "immediately" for rezoning of the property, in which the vendor asserted a counterclaim for damages based on the vendee's breach of the contract, the plaintiff vendee appeals from a judgment of the Supreme Court, Nassau County, rendered August 24, 1960, upon the decision of the court after a nonjury trial, dismissing the complaint and awarding damages to the defendant vendor on its counterclaim. Judgment affirmed, with costs. In our opinion, under the circumstances here, the failure of the vendor to file the application for change of zone immediately after execution of contract was a technical breach which did not warrant rescission. Beldock, Acting P.J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur.