116 Misc. 299 | N.Y. Sup. Ct. | 1921
The plaintiff sues to impress a lien upon real property which he contracted to buy for the amount that he paid down on the contract and searching fees. The plaintiff claims the title is unmarketable because of an easement and certain encroachments of the building. The contract provided for a deed subject to “ Covenants and restrictions running with the land ” and it would seem that the exception was broad enough to cover the easement in question. Dime Savings Bank v. Butler, 167 App. Div. 257; affd., 215 N. Y. 708.
The encroachments consist of store windows, cellar doors, steps, fire escapes, cornices and pilasters, all
Practically all of the encroachments mentioned have been disregarded in various decisions. Acme Realty Co. v. Schinasi, 154 App. Div. 397; Celestial Realty Co. v. Childs, 100 Misc. Rep. 532. In the Acme case the court found it impossible to ignore oriel windows of solid masonry construction from the foundation up which encroached one foot over the street line because they could not be removed without defacing the entire building, but platforms, steps and show windows were not considered serious.
In the instant case the encroachments complained of appear to be common in the neighborhood in question and no action as yet has been taken by the authorities toward requiring their removal. The failure to do so does not preclude them, however, from enforcing the law at any time. It cannot be said that
I cannot find any authority nor has one been cited to the effect that the exception in the contract would ■cover encroachments visible upon inspection but not discoverable without a survey. In this case they are eighteen in number although it is the four brick pilasters that are the more serious. Unquestionably the authorities could and might at any time be disposed to require the removal of a substantial portion of these encroachments and in such an event the cost would be such as to constitute a “ burdensome expense.” It does not seem that the purchaser should be compelled to complete his purchase. Judgment will be directed for the plaintiff for the amount paid on the contract and for title examination.
Judgment for plaintiff.