Barr v. Emen Homes, Inc. , 3 A.D.2d 715 ( 1957 )

In an action to recover a deposit paid on account of a contract to purchase land and a dwelling to be erected thereon by the seller, the appeal is from an order denying appellant’s motion for summary judgment dismissing the complaint and granting respondent’s cross motion for summary judgment striking out the answer, and from the judgment entered thereon. Order and judgment affirmed, with $10 costs and disbursements. No opinion. Wenzel, Acting P. J., Beldoek, Hallinan and Kleinfeld, JJ., concur; Murphy, J., dissents and votes to reverse the order insofar as it grants the cross motion and to vacate the judgment entered in accordance therewith and to deny the cross motion, with the following memorandum: Respondent was obligated to make application for a mortgage Joan to a lending institution designated by appellant. Appellant’s designee, a lender approved by the United States Veterans Administration, offered, and respondent accepted, a loan by a bank “ subject to VA approval ”. During construction of the dwelling, in advance of closing of title and without default by appellant, this action was commenced on the basis of a, clause in the contract under which respondent was entitled to a refund of the deposit if approval of the loan was refused by the appropriate Federal agency. The only question here is whether the designee was ready, willing and able to make the loan available at the proper time. It is immaterial whether the designee was a “ bank ” and whether it might allocate a portion of the loan elsewhere.