Rizzo v. Landmark Realty Corp.

Judgment and order reversed on the law, with costs to the appellants, and defendant’s motion for judgment on the pleadings denied, with $10 costs. Memorandum: We feel that the Special Term was in error in granting defendant’s motion for judgment on the pleadings. Section 240-a of the Real Property Law does not deprive a vendee of the right of specific performance with abatement. Said section (subd. 1, par. [a]) renders unenforeible insofar *1095as the vendor is concerned the right to specific performance when the loss is material. It does not, however, destroy any common-law right of the vendee to specific performance with abatement. (See Bostwick v. Beach, 103 N. Y. 414, 422, and Warren v. Hoch, 276 App. Div. 607.) All concur. (Appeal from a judgment dismissing plaintiffs’ complaint in an action for specific performance.) Present — Taylor, P. J., Love, Vaughan, Kimball and Piper, JJ. [See 278 App. Div. 630.]