Judgment reversed on the law and the facts, with costs, complaint dismissed, without costs, and judgment directed on the counterclaim for $1,500, with interest thereon from December 15, 1959, in favor of defendants against the plaintiff.
Findings of fact inconsistent herewith are reversed and new findings are made as indicated herein. Plaintiff contended, and the trial court found, that defendants were notified of objections to their title prior to the adjourned law date, but took no steps to remove the objections; and that because of the defects in defendants' title, plaintiff was excused from tendering payment. The contract was dated September 22, 1959. The original law date was November 15, 1959. Plaintiff's attorney conceded that he sought and obtained, on November 9, 1959 or November 10, 1959, a postponement of the law date to December 15, 1959, without any indication to defendants' attorney that title would be rejected. On November 30, 1959, plaintiff's attorney wrote to defendants' attorney, demanding return of the contract deposit, and rejecting title upon the ground of illegality of the swimming pool structure on the premises. Plaintiff's attorney failed, however, to specify any basis for the claimed illegality, or to make any tender, or to make any demand for performance by defendants. Nor is there any claim by plaintiff