Gordon C. MacDonald et al., Respondents, v. David M. Goldstein et al., Appellants

Gordon C. MacDonald et al., Respondents, v. David M. Goldstein et al., Appellants. [MAJORITY] Judgment unanimously modified in accordance with memorandum and, as modified, affirmed, with costs to respondents. Memorandum: The record amply supports the judgment granted plaintiffs for defendants’ breach of contract to purchase plaintiffs’ property. However, the court’s memorandum makes no reference to the counterclaim for $2,500 which represented the deposit paid by defendants upon the execution of the purchase offer. The only reference to it was in the court’s refusal to find, as requested by defendants, that “ The defendants Goldstein demanded return of the deposit paid by them in the sum of $2,500 ”. It is clear that the court intended to dismiss the counterclaim, as the evidence demonstrates that he should have, for the proof of plaintiffs’ damages fully supports the retention of the deposit and the $8,500, with interest, contained in the judgment. (Appeal from judgment of Erie Trial Term in action on real estate contract.) Present — Marsh, P. J., Cardamone, Simons, Goldman and Del Yeechio, JJ.