Opinion
Argued April 19, 1929
Decided April 30, 1929
Appeal from the Supreme Court, Appellate Division, Third Department.
Thurlow W. Southwick for appellant.
Charles P. Butler for respondent.
Doubt exists as to the meaning and extent of the judgment of the Appellate Division modifying that of the Special Term. To dispel this doubt, we state the following:
Judgment of the Appellate Division is modified so as to affirm the paragraph of the judgment of the Special Term numbered "third," to read, however, as follows:
" Third. That the plaintiff upon receipt from the defendant of the deed and sums of money set forth in the above paragraphs numbered First and Second of this judgment, as modified, execute, acknowledge and deliver to the defendant a good and sufficient warranty deed of conveyance in fee, conveying to the defendant the following described premises:
"All that tract or parcel of land situate in the County of Pinellas and State of Florida, described as being Lot Numbered Sixteen (16) in Block Numbered Thirty-one (31) as shown by the map of Pasadena Estates, Section `C,' on file in the office of the Clerk of the Circuit Court of Pinella County, Florida, in Book No. 6, page No. 48, subject to a mortgage of eight thousand dollars ($8,000.00), to be assumed by the defendant, with interest thereon, from the 15th day of June, 1927, and subject to all taxes and assessments on said premises since the 15th day of June, 1927."
The paragraph of the judgment of the Special Term numbered "fourth" is modified to read as follows:
"That in the event of the said plaintiff's failure to convey his property in Florida in accordance with the directions contained in paragraph Third of the said judgment of the Special Term, as above quoted, then the contract of exchange made and entered into between these parties is terminated, and the defendant is entitled to and may retain the $200 deposited under the contract in escrow as a binder."
The judgment should be modified in accordance with this memorandum and as so modified affirmed, without costs to either party.
CARDOZO, Ch. J., POUND, CRANE, LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur.
Judgment accordingly.