
    Dorothy Sabel, Respondent, v. Mortimer A. Harrison and Another, Defendants. Claire S. Auer, Appellant.
   The parties having stipulated in writing that this case may be decided by a court of four justices, the decision is as follows: Order denying motion of defendant Auer to dismiss the complaint upon the pleadings reversed upon the law, with ten dollars costs and disbursements, and complaint dismissed, with costs. The general rule is that the vendee of a contract for the sale of real property is not hable to his assignee for the amount of the consideration of the assignment where the contract failed because the vendor was unable to make a good title. Plaintiff claims that the vendor was unable to convey a good and marketable title. Under such circumstances it would be useless for the vendees to be present at the time of the closing of the title. If the vendee refuses to perform the acts required under the contract to be performed, so that the assignee may receive title, then, in that event, the assignee would be entitled to recover back the consideration for the assignment. There is no allegation in this complaint that the vendees were requested or upon such request refused to attend upon the closing of the title to do any of the acts required of the vendees by the contract. Young, Kapper, Lazansky and Hagarty, JJ., concur.  