
    Samuel Kimento et al., Appellants, v. Cumberland Homes, Inc., Respondent.
   Action for specific performance of a written contract for the sale of certain real property in Richmond' County. Judgments (1) dismissing the complaint and (2) for costs, reversed on the law and the facts, with costs to the plaintiffs, and judgment directed for the plaintiffs, with costs, without prejudice to defendant’s claims, if any, based on the alleged repair and alteration agreement and the alleged rental arrangement. Appeal from order dismissed, without costs. The contract upon which plaintiffs sued was admitted in the answer. The proof is conclusive that plaintiffs fully complied with the terms of that contract and, therefore, they were entitled to specific performance. Proof in respect of the alleged contract of December 30, 1941, and in respect of a renting of the premises was improperly received under the pleadings, there being no denial of the contract upon which the plaintiffs sued, and there being no affirmative defense of modification thereof pleaded, nor any pleading in respect of the alleged rental agreement. The defendant is free to prosecute fl separate action against plaintiffs for such claims, if any, as it may have against them in respect of the repairs and alteration item and the rent item, recourse to which was not available under the pleadings herein. Findings of fact and conclusions of law inconsistent herewith are reversed. New findings and conclusions will be made. Settle order on notice. Lewis, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur.  