Order granting motion to dismiss complaint modified so as to give leave to plaintiff to serve an amended complaint within twenty days from the entry of the order herein, upon payment of costs to date. In the event of such payment, and of service of the amended complaint, the judgment entered upon such order is vacated, without costs. In default of compliance by plaintiff with said conditions, the order and judgment appealed from are affirmed, with costs. Kelly, P. J., Jayeox, Young and Lazansky, JJ., concur; Kapper, J., dissents from the modification, and votes to affirm, on the ground that plaintiff did not have title to the land, such title being an absolute prerequisite to the maintenance of an action for damages for defendants’ alleged breach of this contract. (Bigler v. Morgan, 77 N. Y. 312; Booth v. Milliken, 127 App. Div. 522, 527; Stern v. McKee, 70 id. 142, 146; Todd v. Union Casualty & Surety Co., Id. 52, 55; 2 Williston Cont. 1690.)