I dissent and vote to reverse the judgment, insofar as it directs a conveyance, with an abatement of the purchase price, and to dismiss the complaint.
The rights and duties of the parties are controlled by section 240-a of the Beal Property Law “ unless the contract expressly provides otherwise”. Neither the legal title nor the possession *661of the subject matter of the contract had been transferred to the purchaser by the contradi. Therefore, the case comes within paragraph (a) of subdivision 1 of that section. It clearly appears that the fire destroyed a material part of the buildings without the fault of either party. Therefore clause (1) of paragraph (a) applies. Under that provision, the right of the purchaser was merely to recover any portion of the price that had been paid. The statute does not give the purchaser any right to specific performance with an abatement of the purchase price where a material part of the property is destroyed. This contract nowhere “ expressly provides otherwise”. The contract provision that ‘ ‘ The risk of loss or damage to said premises by fire, until the delivery of said deed, is assumed by the Seller ” merely made applicable by express agreement what section 240-a already provided as a statutory matter. The contract also provides as follows:
“ In the event for any reason the Seller is unable to cause, to be conveyed marketable title to the premises or otherwise to comply with this agreement, the only obligation of the Seller hereunder shall be to refund the amounts paid by the Purchaser to the Seller under this agreement and the expenses paid by the Purchaser for a title search in an amount not exceeding the established net rates of the Title Guarantee and Trust Company.” The seller agreed to cause to be conveyed, and the purchaser agreed to purchase, the parcels of land described in the contract, “ together with the buildings and improvements erected thereon.” When a material portion of the buildings was destroyed by fire, without the fault of either party, the seller became unable to comply with the agreement. To the extent of the buildings destroyed by fire the contract had become impossible of performance. In my opinion, the quoted provision should be construed to cover this situation. Thereunder the only obligation of the seller was to refund the amount paid by the purchaser to the seller, and the expenses paid by the purchaser for a title search. The provision for payment of the expense for the title search was a matter.in which “ the contract expressly provides otherwise ” than the statute provided. The seller is, consequently, liable for the title search.
Hagarty, Acting P. J., Adel and Nolan, JJ., concur with Carswell, J.; Aldrich, J., dissents and votes to reverse the judgment insofar as it directs a conveyance, with an abatement of the purchase price, and to dismiss the complaint, in opinion.
Judgment in favor of plaintiff affirmed, with costs.