(dissenting):
I am unable to concur in the prevailing opinion. The terms of sale were read before the lots were offered for sale, and that constituted the memorandum of -sale by which the plaintiff was bound.
The terms of Sale¿ as read, provided that the parcels should be conveyed “ with restrictions as to buildings and against nuisances.” After the plaintiff had signed the memorandum of sale,, but before he had paid the amount then required, lie knew that the lots had beén Sold subject to the restrictions of which he now complains. Plaintiff’s witness, Schillinger, who was also a purchaser at the sale, testified: “ I knew about .the restrictions as to nuisances, but I did not know .anything about the' restrictions as to dwellings, ,6o I objected. * * * While I was talking Mr. Sohns stepped up and he made objections of the same kind, ánd Mr. Ken nelly, the auctioneer, after arguing with the clerk, said, 4 Well, if you are not" satisfied with" the bargain, we will give you your money back.’ That was what he'said.” • There is no dispute about the fact, as the testimony of the witness just quoted shows,, that the plaintiff was offered a return of the money which he paid and which he declined to accept. Under such circumstances I do not think he was entitled to' maintain this action. . Such refusal^ 'in my judgment, estopped -him from thereafter claiming a return of his 'money. (Feist v. Block, 115 App. Div. 211; Feltenstein v. Ernst, 49 Misc. Rep. 262; affd., 113 App. Div. 903, which was approved and followed in Schnitzer v. Bernstein, 119 id. 47.) In the Feltenstein •cas.e the court said: “ The general rule respecting the purchase of land subject to incumbrances is that, if the purchaser has notice of the existence of the incumbrance and its general nature, he is chargeable with knowledge of the contents, terms.and conditions thereof, and cannot avoid his purchase, no deceit ór fraud having béóu exercised, because he did not acquaint himself' witji the par*721ticular terms of'the incumbrance, and finds them to be different from what he supposed. * ' * . * All that the seller is required to do is to correctly describe the incumbrance, so far as he attempts to describe it at all. ■ If he does this * * • * he has fulfilled his obligation.”
I am of the opinion the judgment should be affirmed, with costs.
Judgment reversed and new trial granted, with costs to appellant to abide event.