This application of the State Division of Human Rights for an order enforcing an order of the Human Rights Appeal Board of July 24, 1970, and requiring the respondent to comply with the directives therein contained should be denied and the petition dismissed. The findings and order of the Commissioner of Human Rights as modified and affirmed by the State Human Rights Appeal Board are startling and shocking. There is not a scintilla of evidence, let alone substantial evidence in the record, which even suggests that the respondent refused to sell her property to complainant because of his color. In fact the undisputed proof is she actually signed a contract of sale knowing complainant’s color and then later refused to close because she could not find another suitable place, and to go through with the deal would result in putting this unfortunate woman and her four children into the street. True. *281complainant has a cause of action for damages which this respondent must face for the breach. He had started an action in Supreme Court for the damages previous to the instant proceeding which is still pending and has notified respondent that he no longer desired to purchase her home. That is his proper forum and remedy. This case never should have been before the Commissioner of Human Bights and is an excellent example to support the necessity of the position of the Appellate Division, Second Department, when it stated in Matter of Hempstead Volunteer Fire Dept. v. New York State Div. of Human Bights (35 A D 2d 601): “ We have considered the merits of the Division of Human Bights ’ order even though it has argued that petitioners did not timely file their petition and notice seeking review and that they are therefore barred from collaterally attacking the cross motion to enforce its order. We do not think that the 30-day statutory period of limitation in section 298 of the Executive Law was intended to mean that we are without jurisdiction to examine the merits of the division’s order when the division seeks from us affirmative court action in the form of an enforcement order.” I agree with the above statement of the Appellate Division, Second Department. We should not be compelled and I am sure the Legislature did not intend that we should issue an enforcement order without the power to review the merits in these cases. Both parties in these Human Bights cases are entitled to justice. This respondent did not remotely receive it.. Additionally, complainant was barred from filing a complaint with respect to a grievance under section 297 of the Executive Law since he had initiated an action in a court of competent jurisdiction for the same grievance. Therefore, under the law, the State Division of Human Bights had no jurisdiction (Executive Law, § 297, subd. 9; § 300).