Opinion
February, 1929.
Judgment, in so far as it directs the delivery of the two certified checks for $12,500 to the respondent and dismisses the counterclaim upon the merits, reversed upon the law and the facts, and a new trial granted (costs to appellants to abide the event) of the issues raised by the counterclaim and of the issue, raised by the pleadings, of appellants' right to receive and retain the two certified checks aggregating $12,500 delivered in escrow by plaintiff to defendants Denenholz and Pike under the terms of the contract of August 5, 1925. The learned trial court erred in excluding evidence offered to prove that respondent approved the terms of the $17,000 mortgage. Had appellants been permitted to prove and had they succeeded in proving, as they offered to do, that respondent and his attorney examined and approved the $17,000 second mortgage at the September ninth closing, they would have met respondent's objection to the title, raised at the closing on November 4, 1925. Lazansky, P.J., Kapper, Hagarty, Seeger and Scudder, JJ., concur.