Opinion
October 23, 1969
Order entered September 14, 1967, and judgment entered thereon October 11, 1967, as appealed from, unanimously modified, on the law, to the extent of vacating the dismissal of the first cause of action of the complaint herein with respect to defendants Hager Realty Corp. and 200 East 34th Street Management Corp., and reinstating the same. As so modified the order and judgment are otherwise affirmed, without costs or disbursements to either party. We have held in a companion case involving the same parties that dismissal of the action by this plaintiff and others for specific performance was not res judicata "as to the right, if any, of the plaintiffs to recover back the down payment" ( Freedom Enterprises v. Hager Realty Corp., 32 A.D.2d 899). Accordingly, the dismissal at Special Term on that ground cannot stand.
Concur — Stevens, P.J., Tilzer, Markewich, Nunez and McNally, JJ.