SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
*fn*: July 21, 1969.
JOSEPH RAE ENTERPRISES, INC., APPELLANT,
ARTHUR BUHLMANN ET AL., RESPONDENTS
Rabin, Acting P. J., Hopkins, Benjamin and Kleinfeld, JJ., concur; Martuscello, J., dissents.
In an action to impress and foreclose a purchaser's lien on real property, the appeals are from (1) an order of the Supreme Court, Richmond County, entered December 3, 1968, which denied plaintiff's motion for summary judgment and granted defendants' cross motion for summary judgment, and (2) a judgment of said court entered the same day pursuant to said order. Order and judgment affirmed, with one bill of $10 costs and disbursements. Martuscello, J., dissents and votes to: (1) modify the order so as to (a) strike out the provisions granting defendants' cross motion and (b) deny said cross motion and (2) reverse the judgment, with the following memorandum:
I am of the opinion that serious factual issues exist as to the marketability of the title to the property which defendants contracted to sell, and also as to whether, in accordance with the terms of their contract, they were able to furnish a title which a qualified title company would approve and insure, without exceptions other than those contemplated by said contract (see Kopp v. Barnes, 10 A.D.2d 532; New York Investors v. Manhattan Beach Bathing Parks Corp., 229 App. Div. 593; Dukas v. Tolmach, 2 A.D.2d 57). Accordingly, a trial of these issues must be had.