
    Benjamin Friedland, Appellant, v. Argentor Holding Corporation, Respondent.
    
      Vendor and purchase1 sale — contract — money deposited by purchaser on execution of contract of sale of real property — provision in contract for forfeiture in case of default and for extension of time on payment of additional sum — payment of amount required for extension — on final default action to recover additional amount paid cannot be maintained.
    
    
      Friedland v. Argentor Holding Corp., 215 App. Div. 679, affirmed.
    (Argued January 22, 1926;
    decided March 2, 1926.)
    Appeal from a judgment, entered January 4, 1926, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed an order of Special Term denying a motion by defendant for a dismissal of the complaint on the ground it failed to state facts sufficient to constitute a cause of action and granted said motion. The complaint alleged that plaintiff’s assignors agreed in writing to purchase real property from defendant and paid $1,000 on signing the contract which contained the following clauses:
    “It is hereby understood and agreed that time is of the essence of the contract and if the purchaser does not take the title on the date hereinafter agreed that this contract shall then become cancelled and the deposit shall be retained by the seller as liquidated damages.
    “It is further understood and agreed that the purchaser may obtain an extension of time within which to take title to June 30, 1924, upon further payment of $4,000 additional to be applied on account of the purchase price.”
    Thereafter the assignor paid the $4,000 required for an extension of time, and at the end thereof, being unable to complete the purchase, so notified defendant and demanded the repayment of the $4,000, which being refused, the claim was assigned to plaintiff who brings this action to recover said amount.
    
      I. Maurice Wormser and William M. Silverman for appellant.
    
      John J. Cunneen and Philip J. Boss for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Cardozo, J.  