Judgment affirmed, with costs.

Concur: Chief Judge Conway and Judges Desmond, Froessel, Van Voorhis and Burke. Judge Dye dissents in the following opinion, in which Judge Fuld concurs.

(dissenting). I dissent and vote to reverse and to reinstate the judgment of Trial Term. The alleged encroachments under the circumstances were not at all substantial. If we may assume that the objections now raised were valid when the encroachments were first discovered, such defects were curable and were waived by the agreement extending the closing to June 23, 1950 in consideration of the vendee’s additional payment of $25,000, as well as subsequent extensions made with full knowledge of the existing encroachments (cf. Fryer v. Rockefeller, 63 N. Y. 268; Riggs v. Pursell, 66 N. Y. 193; Randolph Props, v. Crane, 263 App. Div. 95).

Judgment affirmed.