
    Louis Mintz, Appellant, v. Joseph Rae et al., Respondents.
   In an action by a purchaser against the sellers to recover damages for the latters’ breach of a contract to sell.certain real property,-plaintiff appeals: (1) from an order of the Supreme Court, Kings County, dated February 16, 1960, granting defendants’ motion, pursuant to rule 113 of the Rules of Civil Practice, for summary judgment dismissing the complaint; and (2) from the judgment of said court, dated March 2, 1960, dismissing the complaint, entered upon said order. The contract provides that if defendants are unable to deliver marketable title they may return all moneys paid by plaintiff on account and that the contract would thus be discharged or terminated. It appears clearly that defendants were unable to deliver marketable title on the law day. They gave notice to plaintiff accordingly and purportedly returned the moneys paid by plaintiff on account. Upon the argument of the appeal in this court it was conceded by defendants that proper computation shows that in order to comply with the termination provisions of the contract they are required to pay an additional $1,250 to the plaintiff. Order reversed, with $10 costs and disbursements to plaintiff; defendants’ motion for summary judgment denied; judgment vacated; and summary judgment directed in favor of plaintiff for $1,250, together with the costs of the action. In our opinion, on the record presented it appears, in view of defendants’ concession made upon the argument of the appeal, that there is no issue of fact to be tried and that plaintiff is entitled to judgment for the amount stated. Ughetta, Acting P. J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.  