Schmidt v. C. P. Builders, Inc.

*732Munder, Acting P. J., Martuscello, Latham and Shapiro, JJ., concur; Benjamin, J., dissents and votes to affirm the judgment, with the following memorandum: In my opinion, Special Term’s determination was equitable and was amply supported by the evidence. It should also be noted that, at the trial, plaintiffs plainly indicated they were not ready, willing and able to perform pursuant to the terms of the contract (which was for the construction of a residence for them by defendant C. P. Builders), since plaintiff Joseph Schmidt testified that he would not trust that defendant to build a house…