
    Irving Levine et al., Appellants, v. Charles M. Robin et al., Respondents.
   'Judgment of the Supreme Court, Suffolk County, dated June 22, 1965, reversed, on the law and the facts, with costs, and judgment directed to be entered in favor of plaintiffs for the return of their down payment, $2,800, plus interest from August 8, 1963, and dismissal of the counterclaim, with costs. Findings of fact inconsistent herewith are reversed and new fundings are made as indicated herein. In our opinion, it was not necessary for plaintiffs, before canceling the contract, to await the decision of the Veterans’ Administration on the renewed application for a mortgage commitment, since it was apparent that the application would, in any event, be denied because of the unavailability of a proper certificate of occupancy. The law does not require a party to await the happening of a condition which, without the fault of such party, is incapable of fulfillment (cf. Momberger v. Maleca Co., 82 N. Y. S. 2d 190, affd. 274 App. Div. 932, affd. 299 N. Y. 555). Under the circumstances, plaintiffs’ cancellation was timely made and did, in fact, effect a cancellation of the contract. 'Consequently, plaintiffs were relieved from proceeding any further and were entitled to the return of their down payment. Beldock, P. J., Christ, Brennan, Rabin and Benjamin, JJ., concur. [46 Mise 2d 324.]  