Freedom Enterprises, Inc. v. Hager Realty Corp. 32 A.D.2d 899

Order entered August 12, 1966, dismissing plaintiff’s complaint, and order entered January 14, 1969, denying reargument, unanimously affirmed, without costs and disbursements. We conclude that the remedy of specific performance is unavailable to plaintiffs but we do not reach a determination on the merits as to whether the plaintiffs defaulted under the contract on the closing date of February 14, 1964, as claimed by defendants or whether a default, if it then occurred, was waived. Under the circumstances, the dismissal of the complaint shall not be res judicata as to the right, if any, of the plaintiffs to recover back the down payment made by them. Concur— Eager, J. P., Capozzoli, Tilzer, Markewich and Nunez, JJ.