Opinion
December 11, 1939.
In an action by the vendor for specific performance of a contract for the sale and purchase of real property, the defendant Mollie Eisenstadt counterclaimed for the return of the down payment. The defendants had judgment dismissing the complaint on the merits and for recovery by Mollie Eisenstadt of the amount paid on the making of the contract. The plaintiff appeals. Judgment reversed on the law and a new trial granted, with costs to appellant to abide the event. For the purpose of a new trial all findings are reversed and conclusions disapproved. The down payment cannot be recovered without a finding that the purchaser was ready and willing to perform the contract on her part. On a new trial the plaintiff may invoke in her behalf the application of the general rule in equity that it is a sufficient answer to the claim for rescission that she is able to make her title good before decree. Lazansky, P.J., Hagarty, Carswell, Adel and Taylor, JJ., concur.