
    Louis Cherey et al., Respondents, v. Margaret McLaughlin, Appellant.
    (Argued June 3, 1927;
    decided June 21, 1927.)
    
      Contract — sale — specific performance — delivery of check of third person as down payment — dishonor of check and notice of rescission — check delivered as conditional, not as absolute payment.
    
    
      Cherey v. McLaughlin, 219 App. Div. 728, reversed.
    Appeal from a judgment, entered February 14, 1927 upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of defendant entered upon a decision of the court on trial at Special Term and directing judgment in favor of plaintiff. The action was to compel specific performance of a contract for the sale of real property. The defense was that the contract provided for a down payment; that the check of a third party given by plaintiffs for the amount thereof and represented by them to be good was dishonored; that no part thereof had been paid and that defendant had notified plaintiff • of the rescission of said contract. The Appellate Division held that “ the acceptance of the check was payment to defendant, the evidence failing to show fraud or false representations in the giving of it.”
    
      Joseph J. Cunningham for appellant.
    
      Thomas T. Reilley, Albert J. Rifkind and Sidney Fertig for respondents.
   Judgment of the Appellate Division reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division, on the ground that the check for $750 was delivered as conditional, not as absolute payment.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.  