Lemlich v. 1776 Bedford Avenue Corp.

Judgment modified by striking therefrom the words “ upon the merits ” and inserting in lieu thereof the words “ without prejudice; ” and by further striking therefrom the provision “ that the defendants A. David Benjamin and Solomon S. Schwartz, forthwith sign an order on the Lawyers Trust Company, directing said Lawyers Trust Company to pay over to the defendant, 1776 Bedford Avenue Corporation, the sum of $5,000.00 together with accrued interest thereon, now on deposit with said Lawyers Trust Company.” As so modified the judgment is affirmed, without costs. Findings of fact 6 and 8 are reversed, being without evidence to support them. Conclusion of law modified by striking therefrom the words “ on the merits ” and inserting in lieu thereof the words “ without prejudice; ” and by striking therefrom the direction “ that Solomon S. Schwartz and A. David Benjamin pay over to the defendant 1776 Bedford Avenue Corpora*623tion, the sum of Five Thousand ($5,000) Dollars, together with accrued interest thereon, deposited with the Lawyers Trust Company in accordance with the contract of sale entered into between the plaintiff and the defendant, 1776 Bedford Avenue Corporation.” So-called findings 1, 2, 3, 4, 5 and 7 are merely recitals of incidents of the trial and should not be designated as findings. Rich, Young, Kapper and Seeger, JJ., concur; Lazansky, P. J., dissents, being of opinion that defendants’ consent to the entry of judgment of specific performance was equivalent to a submission of the cause, after which there was no right to discontinue.