
    Rubicon Operating Corporation, Respondent, v. W. A. Rutherford Corporation, Appellant.
   Action by a vendee to recover down payment and expenses and to impress a lien on real property on the ground that the vendor did not tender a good and marketable title. Judgment for plaintiff and order denying a motion for a new trial on the ground of surprise and perjury unanimously affirmed, with costs. The weight of the credible evidence shows that plaintiff made no demand for the production of an agreement extending the mortgage to 1940, nor did it interpose specific objection to the title because of the open mortgage of record, as of the law day. The weight of the credible evidence also shows, however, that defendant repeatedly assured the plaintiff that the due date of the mortgage as of record was 1940, and asserted that any title search to the contrary was defective. These assurances were given under a mistaken belief by the president and the attorney for the defendant that an agreement extending the mortgage had been recorded. Defendant misled the plaintiff and lulled it into the belief that physical possession of the extension agreement was unimportant. Under such circumstances, a demand by plaintiff was unnecessary, and defendant did not tender such title on the law day as warrants a forfeiture of the down payment. Present — Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ.  