Budd Realty Corp. v. Epstein

253 A.D. 727, 300 N.Y.S. 835, 1937 N.Y. App. Div. LEXIS 5349

Opinion

In an action for the fixation of a lien for the amount of a down payment made in pursuance of a contract to purchase real property, for expenses in connection therewith, and for judgment in such aggregate amount, judgment dismissing the complaint unanimously affirmed, with costs. In our opinion, a question of fact was presented as to the application of the clause in plaintiff’s contract relating to “ a further accurate survey ” as including the Lockwood survey. Upon the proof adduced with respect to this ambiguous clause, it appears that the trial court resolved the issue in favor of defendants-respondents, a finding which is not against the weight of the evidence. Hagarty, Adel, Taylor and Close, JJ., concur; Davis, J., concurs in result.