Opinion
January 27, 1941.
Vendee's action for specific performance of a contract for purchase and sale of real property, or for the return of deposit paid and expenses incurred. Judgment in favor of the vendor reversed on the law, with costs, and judgment directed in favor of appellants, with costs, in accordance with this decision. Findings of fact are reversed and conclusions of law disapproved. The respondent cannot convey good title in accordance with the contract. The location of the dwelling is a clear violation of the restrictive covenant. Plaintiffs' proposed findings approved and adopted as follows: Nos. 1 to 6, inclusive; No. 17, No. 19, and an additional finding is made providing that plaintiffs paid a deposit of $850 and title search expenses of $110.50. Plaintiffs' conclusions of law Nos. 1 and 2 are approved and adopted. No. 3 will provide that the covenant agreement did not modify the restrictive covenant. No. 4 will provide that the defendant A. L. Homes, Inc., cannot convey good title to the plaintiffs in accordance with the contract. No. 5 is approved with exception of the reference to counsel fee. (See Chesebro v. Moers, 233 N.Y. 75.) Lazansky, P.J., Carswell, Johnston, Adel and Close, JJ., concur. Settle order on notice.