80 N.Y.S. 719 | N.Y. App. Div. | 1903
Lead Opinion
This action was brought to compel the specific performance of a contract for the exchange of real property, or, if for any reason specific performance could not be had, that the plaintiff be awarded judgment for the amount paid by him upon the contract and for certain expenses incurred therein in searching the title. It appeared upon the trial that the plaintiff and defendants entered into a contract in writing whereby the defendants agreed to convey to the plaintiff certain property owned by them, known as No. 357 West Fifty-fourth street in the borough of Manhattan, city of New York, being a lot twenty-five feet in width by one hundred feet five inches in depth, upon which lot there was in process of erection a five-story brick tenement house .intended to cover the whole width of the lot. In exchange for this property the plaintiff agreed to convey certain lots at Mamaroneck and pay the defendants $4,500 in addition thereto. At the time of the execution and delivery of the contract, the plaintiff paid $1,000 thereon. He has expended in addition thereto in searching the title $145. Upon the examination of the defendants’ title to the property contracted to be conveyed, it appeared that the wall of the building then in process of erection upon the lot encroached upon the adjoining premises about two inches. . When this fact came to the knowledge of the plaintiff and
It is insisted by the appellants that the complaint does not set forth a cause of action calling for equitable relief, and that the motion t'o dismiss the same should have been granted by the trial court, or the case held to be an action at law and sent to a jury for trial. The complaint sets up the facts which form the basis for the action, demands judgment that the defendants specifically perform the agreement and convey to the plaintiff said premises, or,, if such relief may not be had, then that the plaintiff recover the sum which lie paid upon the contract, together with the costs and. expenses incurred in connection therewith. It is a general equitable rule that specific pérformancé of a contract to convey real estate will not be granted where in consequence of a defect in the title the vendor is unable to perform, his contract. . The reason for this rule
Aside from this question, however, it appears in the present case that the defendants joined issue upon the complaint without raising any such question. On the contrary, they asked in their answer for a specific performance of the contract, and that they be permitted to recover therein the balance of the purchase price from the plaintiff. The defendants, therefore, voluntarily submitted themselves to the equitable jurisdiction of the court, and under such circum
It was established as a fact that there was an encroachment which substantially affected the marketable ■ character of this property.. The defendants recognized that such encroachment existed, and tried to remedy the defect, but failed in the attempt. The encroachment itself constituted a substantial objection and renders the title unmarketable within the authorities. Under such circumstances, the plaintiff was not bound to accept it. (Moore v. Williams, 115 N. Y. 586; Irving v. Campbell, 121 id. 353.)
The defendants rely upon MacDonald, v. Bach (51 App. Div. 549), where this court held that an encroachment of three-quarters of an inch under the circumstances of that case did not constitute a defect in the title. That case is clearly distinguishable from the present. Therein the adjoining owner of the premises had erected an independent wall which abutted on the encroaching wall .under such circumstances as indicated a design upon his part practically to. locate the boundary line between the two pieces of property. In the conveyance the property was described by metes and bounds and the language added,, “be the said several dimensions more or less.” The proof in the case showed that the court would have been justified in finding that there was no encroachment at all. These considerations, in connection with the practical location of the line by the adjoining owner, were held to make a doubtful encroachment of three-quarters of an inch insufficient to constitute a defect.. In the present case the court was justified in finding that the encroachment
It follows from these views that the judgment should be affirmed, with costs.
O’Brien, McLaughlin and Laughlin, JJ., concurred.
Concurrence Opinion
I concur upon the ground that the defendants submitted themselves to the equitable jurisdiction of the court.
Judgment affirmed, with costs.