
    Interborough Rapid Transit Company, Appellant, v. Clarence H. Kelsey, as Administrator with the Will Annexed of the Estate of Mary G. Pinkney, Deceased, Respondent.
    (Argued June 8, 1916;
    decided July 11, 1916.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 11,1914, affirming a judgment in favor of defendant entered upon a decision of the court on trial at Special Term in an action to recover the down money paid by plaintiff as vendee on the execution of a contract to purchase a parcel of land on the Harlem river. Plaintiff also sought to establish and foreclose a lien on the land for the repayment of said amount. The answer pleads a counterclaim for specific performance of the contract. The judgment dismisses the complaint and gives judgment on the counterclaim that the plaintiff specifically perform the contract, and accept a deed in a prescribed form and pay the purchase price. The cause of action claimed is based on the ground that defendant could not convey a title according to the contract, and was in default.
    
      Charles T. Adams and James L. Quackenbush for appellant.
    
      Abram I. Elkus and Wesley S. Sawyer for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Willard Bartlett, Oh. J., Chase, Collin, Cuddebaok, Hogan, Oardozo and Seabury, JJ.  