
    Diedrich Scheffer, Appellant, v. John H. Plate and Another, Respondents.
   Judgment dismissing complaint and restraining plaintiff from enforcing judgment of specific performance, and vacating such judgment, reversed on the law and facts, without costs, and judgment directed declaring that defendant Meta A. Plate, wife of defendant John H. Plate, has an inchoate right of dower in the premises described in the complaint, without costs. Defendant John H. Plate became the owner of the premises free and clear of any rights of the Melnerney-Klinek Realty Company, which had an exclusive agency to sell the premises in behalf of said Plate when he became the owner. This agency in no wise impaired the dower right of the wife of Plate. The facts did not warrant a finding that plaintiff had rescinded the contract or waived his rights under the specific performance judgment. Defendant John H. Plate had refused to recognize the contract made in his behalf by his agents. The check for $2,000 to the order of the agents was returned to plaintiff before the specific performance action. Findings of fact “ fifth ” and “ sixth ” of the decision in the specific performance action are conclusive against the finding of rescission under the facts here presented. Findings in accordance herewith should be settled on two days’ notice. Kelly, P. J., Jaycox, Young, Kapper and Lazansky, JJ., concur.  