
    Samuel Schwartz and Others, Appellants, v. Fox Metropolitan Playhouses, Inc., Respondent.
   Judgment reversed on the law and the facts, with costs, and judgment directed in plaintiffs’ favor for specific performance of the contracts in suit, with a suitable abatement from the contract price, or a deposit or an undertaking with corporate surety to indemnify the defendant for the reasonable cost of the removal of the encroachments of the Oxford Theatre on the public street, in the event that the defendant shall be required to remove the same, and that plaintiffs recover the costs of this action. In our opinion, the changes in the situation of the parties referred to in the memorandum of the trial court, were the results of the many adjournments at defendant’s request, its financial inability to consummate the contracts, the radical changes that occurred during that period in the motion picture business, and in the public demand for sound or talking pictures. Concededly, the defendant was not financially able to complete the contracts until April 29, 1929, which was five weeks after the last date fixed for closing. At the time of the trial, all defects in the title of the premises had been cured, and all incumbrances removed except certain encroachments of the Oxford Theatre on the public highway, namely, two balconies, two pilasters constructed of terra cotta stucco, and a marquise, all of which can be removed at an estimated cost of from $675 to $3,700, without injury to the theatre building and without affecting its interior, and without a substantial loss in the fee or rental value of the premises.. (Acme Realty Co. v. Schinasi, 215 N. Y. 495.) Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. Lazansky, P. J., Young, Hagarty and Tompkins, JJ., concur; Kapper, J., dissents and votes to affirm on the ground that the encroachments of the Oxford Theatre building rendered the title unmarketable. Let the order be settled on notice, at which time the parties will be heard on the question of abatement, deposit, or security.  