
    A. Kimball Company, Respondent, v. Charles A. Fox, Appellant.
    
      Vendor and purchaser — contract to sell real property free from incumbrances — when purchaser may recover payment of portion of purchase price upon discovery of building restrictions running with land.
    
    
      Kimball Co. v. Fox, 209 App. Div. 812, affirmed.
    (Argued October 13, 1924;
    decided November 25, 1924.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department entered May 20, 1924, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. Plaintiff and defendant entered into a contract whereby the defendant agreed to sell to the plaintiff said real estate free from all incumbrances, except a certain mortgage. On the day fixed for closing title, the plaintiff refused to accept a conveyance of the premises on the ground that defendant could only convey them subject to certain restrictions as to their use, which were not excepted in the contract of sale and thereafter brought this action to recover back the sum of $2,500 paid by it on account of the purchase price. By his counterclaim the defendant sought to enforce specific performance of the contract of sale.
    
      Henry M. Stevenson for appellant.
    
      Abraham A. Silberberg for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cabdozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.  