
    Max Brandes, Appellant-Respondent, v. Oram Construction Corp., Respondent-Appellant.
    Supreme Court, Appellate Term, First Department,
    December 13, 1956.
    
      
      Sigmund Goldstein and Max Nachamie for appellant-respondent.
    
      Alfred J. Conforti for respondent-appellant.
   Per Curiam.

It was not a breach of the agreement between the parties for plaintiff, due to changes for the worse in his financial circumstances and sickness requiring an operation, to notify the lending institution that his income would be less than stated in the application and not sufficient for him to carry the “ Gr. I. loan ” he had applied for in connection with a contract for the purchase of a house' from defendant. He acted wisely and prudently in withdrawing the application. Since the contract provides for a refund of the deposit (less the cost of credit investigation) in the event the lending institution shall refuse to approve the application for the loan, plaintiff should have judgment for the full amount of $700 he deposited with defendant on the signing of the contract, defendant having failed to establish any damages. The award made by the court below in the sum of $300 was clearly a compromise.

The judgment should he modified by increasing the award to $700 and as modified affirmed, with $25 costs to plaintiff-appellant-respondent.

Hoestadter, Aurelio and Tilzer, JJ., concur.

Judgment accordingly.  