108 N.Y.S. 560 | N.Y. App. Div. | 1908
The action is brought by the vendee for specific performance of a contract of purchase and sale of real property. He had judgment for the return of his deposit and for damages, on the ground that the defendant could not give a marketable title. The premises were described in said contract as bounded on the east.“ by land of Division Avenue,” and the plaintiff alleges that the title is unmarketable for the reason that there is no public avenue or street on the east of said premises and no access thereto except over private property. •
The respondent asserts that we cannot review the facts for the reason that no exceptions to the findings of fact were filed. An exception is only necessary to raise a question of law;. indeed, it would seem that an exception can.-o.uly be taken to a ruling on a question of law, a finding of fact without any evidence tending to sustain it being deemed such. (Code Civ. Proc. §§ 992, 993, 994.) This court is required to review the facts. (Code Civ. Proc. § 993; Henderson v. Dougherty, 95 App. Div. 346.)
There is no question but that the vendor had title to the premises which she contracted to convey. The record does not disclose anything affecting the marketability of her title, and the plaintiff had to prove the facts dehors the record relied upon to affect the marketability of title. (Greenblatt v. Hermann, 144 N. Y. 13.) It may be assumed that the description of the premises as bounded by an avenue imported at least that there was access to the premises over some public road or street, and that the absence of such access would affect the marketability of title.' The trial court found 'that there was no public highway adjoining the premises, and we must examine the record to ascertain whether that finding was justified.
Jenks, Hooker and Gaynor, JJ., concurred; Rich, J., voted for affirmance upon the opinion of Mr. Justice Scudder at Special Term.
Judgment reversed and a new trial granted, costs to abide the final award of costs.