Opinion
March 22, 1971
In an action by vendees to recover their down payment upon a contract to sell real property and to erect a dwelling on the land, plaintiffs appeal from an order of the Supreme Court, Nassau County, dated July 22, 1969 which denied their motion for summary judgment upon the second cause of action, in which it is alleged that defendant's demand that sewer charges be paid was not in accordance with the contract. Order affirmed, with $20 costs and disbursements. We are not making any determination concerning defendant's application, made for the first time in its brief on this appeal, for summary judgment dismissing the second cause of action. In our view, since defendant has not cross-appealed, we are without authority to consider and determine said application by defendant ( Ralston Purina Co. v. Siegel's Poultry, 24 A.D.2d 926). Wiseman v. Knaus ( 24 A.D.2d 869), referred to by defendant in this connection, is distinguishable. In Wiseman, the defendant appealed from an order of Special Term which had granted the plaintiffs' motion for summary judgment on both causes of action alleged in the complaint in that case. In connection with that appeal, this court had the power to grant to the defendant any relief we deemed appropriate in the light of the record therein. Martuscello, Acting P.J., Latham, Christ, Brennan and Benjamin, JJ., concur.