
    Mary Levitan, Appellant, v. Julius H. Levine, Respondent.
    First Department,
    December 7, 1928.
    
      Bernard Breitbart of counsel [Breitbart & Breitbart, attorneys], for the appellant.
    
      Abraham M. Silverman of counsel [I. Batch Louis, attorney], for the respondent.
   McAvoy, J.

Defendant had judgment in this suit which was brought for the recovery of a deposit of $3,000 on a real estate contract of sale. There was a binder executed which was very full in its provisions, in fact enough terms were set out therein to carry through the deal to the conveyance. But the parties agreed in the binder to have a more formal contract drawn. When this formal contract wag proposed, it contained numbers of restrictions, to which the title was subject, not even mentioned in the binder. Plaintiff refused to make the contract as proposed and brought this action. The court submitted to the jury the question as to whether or not defendant had refused to enter into the contract in which the parties had acquiesced, and had insisted on declining to make any other contract than that proposed at the closing time, on the ground that plaintiff had agreed orally to the terms contained in the formal contract. Obviously this was a false issue, because if there was any agreement to sign the formal contract with the new terms, it was not in writing and hence void. And if no agreement in writing was had as to a new contract, as to which fact no issue was joined, defendant was bound to carry out the terms of the binder agreement which was subject to no such restrictions and incumbrances as the property suffered under by covenant and assessment. This he did not and could not offer to do. Hence on the proof there should have been a direction for plaintiff for the deposit money.

The judgment and order should be reversed, with costs, and judgment directed for plaintiff for $3,413.75, with costs, and with interest thereon from the 23d day of November, 1927.

Dowling, P. J., Merrell, Finch and Proskauer, JJ., concur.

Judgment and order reversed, with costs, and judgment directed in favor of plaintiff against the defendant in the sum of $3,413.75, with costs, and with interest thereon from the 23d day of November,- 1927.  