Rosenberg v. Centre Davis Corp.

In an action by the vendee against the vendor under an executory contract for the sale of real property, to recover the vendee’s deposit and the cost of title examination and to impress a lien therefor on the property, in which the defendant asserted counterclaims for specific performance and damages, the defendant appeals from a judgment of the Supreme Court, Westchester 'County, entered October 20, 1960 upon the decision of the court after a nonjury trial, in favor of the plaintiff as prayed for in the complaint and dismissing defendant’s counterclaims. The trial court held that a restrictive covenant which, among other things, prohibited the construction or maintenance of any tenement house or dwelling house other than a one-family house, on a portion of the parcel to be conveyed, constituted an encumbrance which justified the rejection of title by plaintiff. Judgment affirmed, with costs (cf. Isaacs v. Schmuck, 245 N. Y. 77; Van Vliet & Place v. Gaines, 249 N. Y. 106; Mauser v. Friesco Beatty Corp., 230 App. Div. 790; Antin v. O’Shea, 270 App. Div. 1046; McAndrew v. Lanphear, 280 App. Div. 6; Wates v. Crandall, 144 N. Y. S. 2d 211, affd. 2 A D 2d 715). Nolan, P. J., Ughetta, Christ, Pette and Brennan, JJ., concur.