O'Connor v. O'Connor-Mosher and Co.

Order unanimously affirmed, with costs. Memorandum: Defendant pleaded and plaintiff admits that plaintiffs testator did not have title to part of the land he agreed to convey and that the remainder of the land was subject to a setback provision. Lack of title and the existence of a restrictive covenant are factors that affect marketability of title and it cannot be said from the record that defendant’s defense is meritless as a matter of law. Both of defendant’s counterclaims are for breach of contract. Such a cause of action exists in favor of a purchaser when the seller cannot convey…