Rowe v. Hollis Holding Corp.

235 A.D. 747

Opinion

Judgment modified by striking out the decretal portions thereof and substituting in place thereof a provision for the recovery by plaintiff from the defendants of the sum of $1,000, with interest and costs, and as so modified unanimously affirmed, with costs to respondent. Finding of fact 12 and proposed findings of the defendants found by the trial court numbered 7, 8 and 10 are reversed as contrary to the evidence. Conclusion of law 3, and also 4 so far as it finds that plaintiff is entitled to a hen on the premises in question and directs a sale thereof, are reversed. As the plaintiff elected to rescind the contract and sue for his deposit, he is not entitled to a hen upon the property in question. (Davis v. Rosenzweig Realty Co., 192 N. Y. 128.) Present — Lazansky, P. J., Young, Carswell, Tompkins and Davis, JJ. Settle order on notice.