
    George Gabel, Respondent, v. Hastings Homes Company, Appellant.
    (Argued May 25,1917;
    decided June 15, 1917.)
    
      Gabel v. Hastings Homes Co., 167 App. Div. 912, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department,' entered February lo, 1915, affirming a judgment in favor of plaintiff entered upon an order of the court at Special Term granting a motion for judgment on the pleadings. This action was originally brought to procure the specific performance of a real estate contract, but when the time of final hearing arrived, it appeared that the defendant could not make title in accordance with the contract. The plaintiff by means of an amended supplemental complaint set out these facts, and demanded judgment for the amount of purchase money paid with interest. The answer alleged that the plaintiff originally commenced this action for specific performance; that at the time of the commencement of the action the plaintiff knew that the defendant could not convey the property free from incumbrances, because the plaintiff knew at the time of the commencement of the action that the premises were incumbered by the easement described in" the complaint; that the amended supplemental complaint was served, and that in such amended supplemental complaint the plaintiff demanded judgment adjudging that he have a lien upon the premises described in the contract for the amount of payments made by him, with interest; and that the plaintiff, by commencing his suit for specific performance, destroyed his right of action to recover the purchase money.
    
      Richard Krause and Clarence G. Galston for appellant.
    
      George H. Taylor, Jr., and Smith Williamson for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chase, Collin, Ouddeback, Cardozo, McLaughlin, Crane and Andrews, JJ.  