
    Morris Scheckner, Appellant, v. Broad Development Co., Inc., Respondent.
    
    Supreme Court, Appellate Term, First Department,
    November 11, 1927.
    Vendor and purchaser — action to recover back down payment — contract stipulated for cancellation if plaintiff’s assignor could not give title — on inability of plaintiff to give title he was entitled to return of deposit.
    The contract between the plaintiff’s assignor and the defendant stipulated that in case the plaintiff’s assignor could not convey a good and marketable title, then the contract should be considered as canceled except that the plaintiff’s assignor should be entitled to the return of the deposit made. Since it appears that the plaintiff was unable to carry through the transaction because of his inability to deliver a good and marketable title, he has a right to recover back the down payment.
    Appeal by plaintiff from a judgment of the City Court of New York, Bronx county, in favor of the defendant.
    
      Herman Scheckner, for the appellant.
    
      Frank A. Bellucci, for the respondent.
    
      
      Revg. 129 Misc. 903.
    
   Per Curiam.

The contract between plaintiff’s assignor and defendant with respect to the conveyance by plaintiff’s assignor of certain property owned by Tenbroeck Development Company, and which property the Tenbroeck Development Company had contracted to sell plaintiff’s assignor, provided, among other things, that, in the event that plaintiff’s assignor could not convey a good and marketable title upon the terms and conditions set forth in such contract, then the contract should be canceled, except that plaintiff should be entitled to the return from the defendant of the deposit which the plaintiff had made as part of the purchase price of property which it was obtaining in exchange from defendant, the Broad Development Company, Inc. Plaintiff was entitled to recover, as he had become unable to carry through the exchange of properties by reason of his inability to deliver a good and marketable title upon the terms and conditions of his contract with defendant respecting property owned by Tenbroeck Development Company.

Judgment reversed, with costs, and judgment directed in favor of plaintiff, as prayed for in the complaint. Settle order and findings on notice.

Present — Delehanty, Lydon and Crain, JJ.  