Opinion
June, 1928.
Judgment reversed upon the law and the facts, with costs, and judgment directed for plaintiff for the amount of the down payment, with interest from August 6, 1925, with costs, upon the ground that at the time fixed for the execution of the "formal contract" defendant was unable to deliver title free of restrictions, which had not been provided for in the binder, and that defendant's own acts in suggesting and acquiescing in an adjournment did not make time of the essence of the contract as of August 14, 1925. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and appropriate conclusions will be made. Lazansky, P.J., Kapper, Hagarty, Seeger and Scudder, JJ., concur. Settle order on notice.