
    Barnet Rifkin, Appellant, v. Ed Zit Holding Corporation, Respondent.
   Order, as resettled, reversed upon the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. In our opinion, the plaintiff is entitled, under section 476 of the Civil Practice Act, to a judgment for the recovery of the down payment of $3,500 and to have the same made a hen upon the premises in question, and to have the action proceed as to the remaining issues. Although our decision upon the former appeal in this case (225 App. Div. 891) struck out from the amended answer the second defense and the two counterclaims, the allegations contained in that defense and the counterclaims constitute sworn admissions on the part of the defendant, of which admissions plaintiff may avail himself on this motion, that it did not have title to a substantial part of the property described in the contract of sale and was, therefore, unable to convey the same. Lazansky, P. J., Rich, Young, Seeger and Seudder, JJ., concur.  