Carlton Properties, Inc. v. Hadley Corp.

10 A.D.2d 844, 200 N.Y.S.2d 292, 1960 N.Y. App. Div. LEXIS 10485

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 26, 1960
• Status: Published

Opinion

Order denying motion of plaintiff-appellant for summary judgment is unanimously modified, on the law, with $20 costs and disbursements to appellant to the extent of granting partial summary judgment against defendant-respondent Hadley Corporation on the first cause of action for the sum of $5,000 and interest, dismissing the said cause of action as to defendant-respondent Acme Backing Corporation, and dismissing the counterclaim insofar as it relates to the first cause of action and severing the action accordingly and continuing it as to the second cause of action, and, as so modified, affirmed. The binder agreement of September 8, 1958 provides for “ good and marketable title free of liens, encumbrances, etc.” The formal contract tendered by defendant-respondent Hadley Corporation provided for the sale of the premises subject to zoning regulations, consents by the seller for the erection of certain structures, encroachments, covenants and other agreements not provided for in the binder agreement. Defendant-respondent Hadley Corporation was bound to carry out the terms of the binder agreement. (Levitan v. Levine, 224 App. Div. 561; Kacpura v. Hicks, 285 App. Div. 816.) It affirmatively appears that the payment of the deposit was made to defendant-respondent Hadley Corporation. Consequently, there is no obligation on the part of defendant-respondent Acme Backing Corporation in respect of said deposit and the first cause of action for the return of said deposit must be dismissed as to said defendant-respondent. Settle order on notice. Concur — Rabin, J. P., Valente, McNally, Stevens and Bastow, JJ.