Opinion
June, 1935.
Order reversed on the law, with ten dollars costs and disbursements, and motion to dismiss the complaint denied, with ten dollars costs, with leave to answer within ten days from the entry of the order herein. In our opinion, the complaint states a cause of action at law for the recovery of the moneys paid by plaintiffs, pursuant to the terms of the contract. The defendant divested itself of title to the premises at a time when, as alleged in the complaint, plaintiffs had performed all the terms of the contract on their part, and thereby defendant breached its contract and, hence, an offer or tender by plaintiffs was unnecessary ( Smith v. Rogers, 42 Hun, 110; James v. Burchell, 82 N.Y. 108.) The demand for equitable relief in the prayer for judgment does not affect the properly stated cause of action for damages. Lazansky, P.J., Young, Carswell, Tompkins and Johnston, JJ., concur.