Miller v. Cooper , 144 Misc. 209 ( 1932 )

Per Curiam.

As we construe the escrow agreement, in the light of the circumstances, defendant was required to hold the $1,000 pending the closing of title; if title was not closed because of any act or default on plaintiff’s part, defendant would be warranted in paying the money to the vendor or for her benefit; but if the vendor was unable to convey in accordance with the stipulations of the contract, and plaintiff refused to close on that ground, defendant was required to return the amount to the plaintiff. In this view the trial judge erred in refusing to allow plaintiff to show the vendor’s default in performance of her contract.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

Levy and Frankenthaler, JJ., concur.