I would affirm. The plaintiff purchaser is entitled to a return of its down payment. The plaintiff’s claim is not merely that the official barricading of the particular village and public street (University Place) abutting the subject premises results in loss of the most convenient access to certain nearby public streets; the nub of its claim is that, notwithstanding other means of access, it contracted for and was entitled to receive the benefit of the full use of all easements appurtenant to University Place designated as the boundary along one entire side of the premises. Actually, the majority opinion concedes that the placing of the barrier by the village authorities did, “to a degree * * * make access to the property in question from a distance more difficult or burdensome.” Furthermore, the majority opinion seems to concede that the barricading of the street by proper authority constituted a breach of the condition of the contract, citing Irwin v. Lido Realty Corp. (250 N. Y. 310). This being so, it is not for the court to say that the plaintiff, as a contracting party, should take less than that for which he contracted. Since the “ de minimis rule ” is not to be followed in an action by the plaintiff purchaser to recover its down payment (see Wates v. Crandall, 144 N. Y. S. 2d 211, 216, affd. 2 A D 2d 715; Rosenberg v. Centre Davis Corp., 209 N. Y. S. 2d 19, *188affd. 15 A D 2d 506), the plaintiff is entitled to recover back the down payment with interest where the defendant is unable to convey title to the premises in accordance with the terms of the contract with full access over the particular village street abutting and immediately adjacent to the premises (Irwin v. Lido Realty Corp., supra). It is no answer to say that the plaintiff, on taking title, would have a remedy against the village for closing the street or be entitled to receive just compensation in condemnation proceedings. (See, e.g., Golden v. Aldell Realty Corp., 70 N. Y. S. 2d 341.) This is in accordance wdth the well-settled general rule that a vendee may not be required to take title where the right to the unencumbered and full use of the premises or appurtenances thereto is apparently to be involved in litigation.
Stevens, P. J., and Timer, J., concur with Steuer, J.; Eager, J., dissents in an opinion in which McG-ivern, J., concurs.
Order, Supreme Court, New York County, entered on July 21, 1971, modified, on the law, to deny summary judgment to the plaintiff and, as so modified, affirmed, and the judgment of said court entered thereon on August 26, 1971, vacated. Defendant-appellant-respondent shall recover of plaintiff-respondent-appellant $50 costs and disbursements of these cross appeals.