
    Joseph Schmidt et al., Appellants, v. C. P. Builders, Inc., et al., Respondents.
   Munder, Acting P. J., Martuscello, Latham and Shapiro, JJ., concur; Benjamin, J., dissents and votes to affirm the judgment, with the following memorandum: In my opinion, Special Term’s determination was equitable and was amply supported by the evidence. It should also be noted that, at the trial, plaintiffs plainly indicated they were not ready, willing and able to perform pursuant to the terms of the contract (which was for the construction of a residence for them by defendant C. P. Builders), since plaintiff Joseph Schmidt testified that he would not trust that defendant to build a house for him. Nor is there any warrant in this record for the reinstatement of Jaro Construction Corp. as a party defendant, since it was not a party to the contract here sued upon and the dismissal of the complaint as to it was for that reason correct.  