Herman Rodgers and Others, Respondents, v. Bertha Development Company, Inc., and Others, Defendants. Samuel Michael, Appellant; Thomas W. Maires, Respondent

Herman Rodgers and Others, Respondents, v. Bertha Development Company, Inc., and Others, Defendants. Samuel Michael, Appellant; Thomas W. Maires, Respondent. [MAJORITY] Order denying purchaser’s motion to be relieved from his purchase and order directing purchaser to complete, affirmed, without costs. It was the duty of the referee under the terms of the judgment to have at once proceeded for a fixation and determination of the amount of the State franchise taxes and to pay the same, after they were so ascertained. That duty should now be performed. In the meantime the closing of the title should be adjourned until the taxes are so fixed, ascertained and paid. If the amount of the purchase money is insufficient to pay these taxes, then the purchaser shall be entitled to be relieved from his purchase. The other questions raised by the appellant have been examined and found to be without merit. Kelly, P. J., Rich, Jaycox and Kapper, JJ., concur; Kelby, J., dissents.