Order modified by denying summary judgment in favor of plaintiffs, and, as so modified, affirmed, without costs, in the following memorandum: Concededly the second half of the 1964-65 real estate taxes was unpaid when plaintiffs took title to the property April 7, 1965. There is a triable issue in this action to discharge the city's tax lien on the question whether plaintiffs were justified in relying on a tax receipt issued through clerical error, when at the time of closing of title, and for several weeks before, a search of an available public record would have revealed the true situation — that the tax had not been paid. Among the triable issues would be whether to continue the search to the extent relevant information was available in public records or to rely on the receipt would have been consistent with sound tax search practice.
Concur: Chief Judge FULD and Judges BERGAN, JASEN and GIBSON. Judges SCILEPPI and BREITEL dissent and vote to affirm. Taking no part: Judge BURKE.