Opinion
April 12, 1971
In an action by a vendee under a contract to sell real property to recover her down payment and for unjust enrichment, defendant appeals from an order of Supreme Court, Dutchess County, dated June 15, 1970, which denied her motion to dismiss the complaint for failure to state a cause of action. Order reversed, on the law, with $10 costs and disbursements, motion granted and complaint dismissed. The complaint alleged that on the law day plaintiff was not ready, willing and able to perform and that defendant sold the property to an unrelated third party. In view of these allegations, the complaint does not spell out a cause of action. Hopkins, Acting P.J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.