116 Misc. 145 | N.Y. Sup. Ct. | 1921
This action was brought on for trial at a Trial Term of this court, the right to a jury being waived. The complaint alleges that the parties entered into a contract for the purchase by plaintiff from the defendants, and the sale by the defendants to the plaintiff, of premises known as Nos. 277 to 283 Sixth avenue, Brooklyn, being the northeast corner of Sixth avenue and First street — five-story buildings, apartment houses. Plaintiff paid on account of the contract the sum of $2,500. The contract, among other things, provided that title was to be “ subject to any state of facts the survey may show and subject to existing monthly tenancies, provided said survey does not show facts as would render the title unmarketableOn the law day defendants tendered a deed of the property, but plaintiff rejected the title upon the ground that the following encroachments of the corner building upon Sixth avenue existed: “ 1. The southwesterly corner of the building erected on the premises first above described and designated as ‘ parcel No. 1 ’ encroaches upon Sixth avenue, a public highway in the City of New York, Borough of Brooklyn, to the extent of one foot and five inches beyond the building line, and upon First street, a public highway in the City of New York, Borough of Brooklyn, to the extent of one foot six inches beyond the building line, both of said encroachments running from the concrete footings which support the foundation of the building to the top of the building and that portion of the building which encroaches as aforesaid, being a substantial part of the building.” The testimony shows this to be a circular bay window at the corner. “ 2. Five piers
“ In these circumstances it cannot be said that a vendor has a marketable title if his building encroaches upon the public street to such an extent as to threaten a vendee with a substantial loss in the fee and rental value of the premises and a burdensome expense in altering the building to meet the requirements of. the law. A vendee has the right to a title that will enable him to hold his land in peace and tó be reasonably sure that no flaw or doubt will arise to affect its marketable quality and value. ’ ’ With this proposition in its application to the case under consideration by the Court of Appeals the defendants
Judgment for plaintiff.