Opinion
December 15, 1980
In an action for specific performance of a contract for the sale of real property, plaintiff and defendant cross-appeal, as limited by their notices of appeal and briefs, from stated portions of a judgment of the Supreme Court, Queens County, dated May 28, 1980, which, after a nonjury trial, directed, inter alia, (1) that the executrix of the third-party defendant pay to the defendant the sum of $21,500, held in escrow as a down payment, and that the defendant thereupon pay that sum to the plaintiff, and (2) that the defendant pay to the plaintiff the additional sum of $366 representing the net cost of examining the defendant's title. Judgment modified, on the law, by deleting the second and third decretal paragraphs thereof and substituting therefor a provision directing Anna Klores, as executrix of the original third-party defendant, to pay the sum of $21,500, held in escrow as plaintiff's down payment, directly to the plaintiff. As so modified, judgment affirmed insofar as appealed from, without costs or disbursements. Inasmuch as the defendant seller was never in possession of the down payment, which was put directly into an escrow account by his former attorney, it was inappropriate and unnecessary to direct that the defendant act as an intermediary in the return of the down payment to the plaintiff (cf. Asher v. Herman, 49 Misc.2d 475). Moreover, although ordinarily plaintiff would not be entitled to a judgment as to the amount expended in the examination of title since it offered no evidence on that subject at trial (see Iannelli Bros. v. Muscarella, 30 A.D.2d 698, affd 24 N.Y.2d 779), it was conceded at oral argument that the sum of $366 provided for in the judgment was correct. Mollen, P.J., Titone, Margett and Weinstein, JJ., concur.