Opinion
December 4, 1961
In an action by a vendee against a vendor for specific performance of a contract for the purchase and sale of a parcel of real estate, the defendant appeals from an order and judgment (one paper) of the Supreme Court, Queens County, dated March 23, 1961, granting plaintiff's motion for summary judgment, pursuant to rule 113 of the Rules of Civil Practice, and directing defendant to execute and deliver to plaintiff a deed conveying said parcel to him (plaintiff) upon his payment to defendant of the purchase price. Order and judgment reversed, with $10 costs and disbursements, and plaintiff's motion for summary judgment denied. The record presents disputed issues of fact as to plaintiff's misrepresentations and overreaching, which should be resolved by a trial. The determination of plaintiff's right to the equitable remedy of specific performance of the contract depends upon and should await the resolution of such issues. Nolan, P.J., Beldock, Kleinfeld, Christ and Pette, JJ., concur. [ 28 Misc.2d 254.]