Majority
p. 738Martin M. Wohl and Harry Wohl, Copartners Doing Business under the Firm Name and Style of Wohl Bros., Appellants, v. Sol Schildkraut and Isabelle B. Booth, Individually and as Executrix, etc., of John N. Booth. Deceased, Respondents.[1]
Judgment unanimously affirmed, with costs. We are of opinion that the testimony supports the decision made by the court upon which the judgment was entered. The defendants, in their contract, provided that the premises were sold “ subject to zoning restrictions.” The testimony of the
p. 739
plaintiffs is that they refused to take title because the property was in a residence district. That the defendant thereupon undertook to have modified the restrictions and regulation, and granted to the plaintiffs an indefinite adjournment, is not consistent with their obligation under their contract and is unbelievable. Defendants’ theory, supported by their evidence, that the plaintiffs breached their contract by refusing to take title on the law day, is consistent -with practical business and common sense. Findings made by the learned trial court, as proposed by the plaintiffs, inconsistent and diametrically opposed to the decision which supports the judgment must be reversed. Findings of fact numbered “IV,” “V,” “VIII,” “XI,” “XII,” “XIV,” “XVI,” “XVII,” “XX,” “XXI,” “XXII,” “XXIV,” and “XXVIII” are reversed, as is conclusion of law numbered “ V.” Present — Lazansky, P. J., Kapper, Hagarty, Carswell and Tompkins, JJ.