Opinion
July 5, 1960
In an action in which the complaint pleads three separate causes: (1) to impress a lien upon real property for the down payment upon a contract for the sale of the property; (2) to recover such payment; and (3) to recover damages for defendant's breach of such contract, the defendant appeals: (1) from so much of an order of the Supreme Court, Westchester County, dated November 23, 1959, as severed the second cause of action to recover the down payment and granted the plaintiff's motion for summary judgment upon such cause on the ground that the defendant had failed to tender a marketable title to plaintiff on the day mutually fixed for performance; and (2) from the judgment of said court entered November 30, 1959, upon said order. Order insofar as appealed from and judgment affirmed, with one bill of $10 costs and disbursements. No opinion. Beldock, Acting P.J., Ughetta, Christ, Pette and Brennan, JJ., concur.