
    401 East 72nd Street Realty Co., Inc., Appellant, v. Ebling Realty Company, Respondent.
    
      Vendor and purchaser — contract — title — action to recover down payment on ground seller did not tender marketable title.
    
    
      401 East 71tnd St. Realty Co., Inc., v. Ebling Realty Co., 222 App. Div. 388, affirmed.
    (Submitted April 6, 1928;
    decided May 1, 1928.)
    Appeal from a judgment, entered January 24, 1928, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed an order of Special Term denying defendant’s motion for a dismissal of the complaint and granted said motion. The action was to recover the down payment made upon a contract to purchase real estate from the defendant on the ground that the defendant did not tender a marketable title. The only defect was that the cellar steps and areas encroached upon the street in front of the premises. The contract provision was as follows: “ Said premises shall be conveyed subject to the terms of tenants now in occupation of said premises, all of whom are monthly or statutory tenants, excepting those holding leases named below, and subject to encroachments of stoop, areas and cellar steps or appurtenances thereto on street and subject also to any state of facts an accurate survey of said premises may disclose that does not render the title unmarketable.”
    
      Charles A. Winter for appellant.
    
      Abraham Grometstein for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and Kellogg, JJ. Not sitting: O’Brien, J.  