
    Louis H. Radin, Appellant, v. Nathan Reizen et al., Respondents.
    
      Vendor and purchaser — contract.— real property — action to recover down payment on ground part of property had been taken in condemnation proceedings.
    
    
      Radin v. Reizen, 222 App. Div. 774, affirmed.
    (Argued April 11, 1928;
    decided May 1, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 3, 1928, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term without a jury. The action was to recover the down payment on a contract to purchase real property, on the ground that part of the property agreed to be conveyed had been taken by the city of New York in condemnation proceedings and, therefore, defendants could not give title thereto. The contract provided that “ Any sum awarded to be paid by the City of New York on account of the condemnation of any portion of the said premises shall be paid in reduction of the said first mortgage at the time the said award is paid. In such event the holder of this second mortgage shall execute such release that the City of New York may require to enable such award to be paid to the first mortgagee. Such provisions to be contained in the said purchase money mortgage.”
    
      Otto C. Sommerich and Maxwell C. Katz for appellant.
    
      Henry Greenberg for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.  