Opinion
December 23, 1938.
The plaintiff sold real property to the defendant under a contract, but before a deed was given a title search disclosed that as to certain portions of the property the title was unmarketable and not insurable. There was a supplemental agreement in which the vendor made an abatement of $500 in the purchase price, which was to be repaid by the purchaser if the vendor, by action or otherwise, submitted proof to a title company chosen by the purchaser that the title was good. The plaintiff claims to have discovered that the title was at all times good and marketable and insurable within the six months' period. He did not offer proof thereof in strict conformity with the collateral agreement. The purchaser refused to make repayment. This action for specific performance and for foreclosure of the lien was then brought. Plaintiff moved for a summary judgment and defendant made a cross-motion for the same relief. The motion of the plaintiff was granted and that of the defendant denied. Order modified so as to provide that plaintiff's motion for summary judgment be denied, and as so modified affirmed, without costs. There is a question of fact as to whether the plaintiff performed the agreement as required on his part within six months after passing of title, or whether he ever did perform it strictly in accordance with its terms. If equitable relief is sought as an equivalent of strict performance, the matter cannot be determined on affidavits but must await proof on a trial. Lazansky, P.J., Davis, Adel, Taylor and Close, JJ., concur.