
    Estate of William G. O’Connor, Appellant, v O’Connor-Mosher and Co., Inc., Respondent.
   Order unanimously affirmed, with costs. Memorandum: Defendant pleaded and plaintiff admits that plaintiffs testator did not have title to part of the land he agreed to convey and that the remainder of the land was subject to a setback provision. Lack of title and the existence of a restrictive covenant are factors that affect marketability of title and it cannot be said from the record that defendant’s defense is meritless as a matter of law. Both of defendant’s counterclaims are for breach of contract. Such a cause of action exists in favor of a purchaser when the seller cannot convey marketable title (1 Rasch, Real Property Law and Practice, § 1103). The counterclaims had also been interposed in a City Court action between the parties for nonpayment of rent and plaintiff moved to dismiss them on that ground. CPLR 3211 (subd [a], par 4) states that "the court need not dismiss upon this ground but may make such order as justice requires”. Since these actions involve identical counterclaims, the consolidation ordered by Special Term was a proper means of eliminating multiplicity of actions (see CPLR 602, subd [a]). (Appeal from order of Onondaga Supreme Court—consolidate action). Present—Marsh, P. J., Moule, Simons, Dillon and Witmer, JJ.  