Plaintiff buyer was entitled to cancel the contract without a showing of tender or ability to pay, because defendants' title was incurably defective, constituting only seven-eighths interest in the subject property, and thus defendants were in automatic breach ( see, Cohen v. Kranz, 12 N.Y.2d 242, 246, 247). Defendants' misrepresentation in the contract that they possessed full title was a misrepresentation that also justified plaintiff's cancellation of the contract ( see, Junius Constr. Corp. v Cohen, 257 N.Y.2d 393, 400).
Concur — Sullivan, J.P., Ellerin, Wallach, Williams and Mazzarelli, JJ.