Kurt Weinberg et al., Respondents, v. Rudolph Osterholm et al., Appellants, et al., Defendant, 20 A.D.2d 921

In an action by the purchasers of real property to recover damages for alleged fraud in the sale of the property, the defendants Osterholm, the sellers, appeal from an order of the Supreme Court, Queens County, dated September 26, 1963 which denied their motion for

summary judgment. Order affirmed, with $10 costs and disbursements. Plaintiffs’ renewed motion to dismiss the appeal denied. In our opinion, on this record, a triable issue of fact is presented as to whether at the time of the closing there was any misrepresentation with respect to the lease upon the tavern, with respect to the rental being paid by the lessee, and with respect to the security deposited by such lessee. In thus stating our opinion as to the triable issue of fact presented on this record, we do not intend to preclude any other issues of fact which may be raised by the proof adduced at the trial. Beldoek, P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.