
    Isaac Goodman, Respondent, v. Joseph S. Schwab, Appellant.
    First Department,
    February 4, 1910.
    Real property — vendor and purchaser —suit to rescind contract of sale — vendee not entitled to lien — refusal to accept title hot justified.
    A vendee of lands seeking to rescind the contract of sale for fraud is not entitled to a decree establishing a lien for earnest money paid.
    Where on the day set for the delivery of the deed the vendee refused to take title on the sole ground.that he was induced to make the contract by the false representations of the vendor, he cannot afterwards justify his refusal on the ground that the land was incumbered by liens, tenancies, easements, etc.
    A vendee is not entitled to a decree rescinding a contract to buy lands upon the ground that the title was defective by reason of .unpaid water rents, incumbrances by t;en¿incies and by the right to maintain an elevated railroad and by reason of Encroachments upon the street, where on the day set for passing title the vendor was willing to pay the water rents and the vendee knew of the existence of the elevated railroad and the tenancies, and the only evidence to establish an encroachment was a paper purporting to be a survey by a city surveyor introduced without a proper foundation over objection.
    Appeal by the defendant, Joseph S. Schwab, from a judgment of the Supreme Court in favor of the plaintiff, entered in thé office of the clerk of the county of Hew York on the 21st day of January, 1908, upon the decision of the court rendered after a trial at the ■ Hew York Special Term.
    
      Charles Goldzier, for the appellant.
    
      Isidor Cohn, for the respondent.
   Miller, J.:

The judgment appealed from decrees a rescission of a contract of purchase and sale of real property and adjudges that the plaintiff, the vendee, have a lien thereon for the amount of his deposit. It is impossible to sustain it in that form. (Davis v. Rosenzweig Realty Co., 192 N. Y. 128.)

The plaintiff’s difficulty results from his attempt in one action to obtain a rescission of the contract for fraud, and a judgment establishing a lien for the amount of his deposit on account of the vendor’s inability to give a good title. The trial court found that the defendant, by certain false and fraudulent representations, induced the' plaintiff to enter into the contract, also , that Certain objections to the title, made by the plaintiff, were valid, to wit, (a) that certain unpaid’ water rents were a lien ; (b) that the • premises were incumbered by certain monthly tenancies; (c) that the iprem-' ises were incumbered by rights acquired for the maintenance, of an elevated railroad in. an adjacent street; (d) that" the premises encroached upon the street. :

It would seem to be a sufficient answer to the objections to the title that the plaintiff testified that lié objected to taking titile sat the "time of closing solely because the representations upon which he relied ill making the contract were untrue. It is quite plain.tljat the plaintiff’s counsel, at the time of closing, made all the technical objections to the title'wliich lie" could think of for the sole purpose of. laying a foundation for a lawsuit. Moreover, it is undisputed that the defendant was willing to pay the unpaid water fBrilts; and it can easily be inferred that the plaintiff knew of the presence, of the elevated railroad in front of "the premises and of the' isti-called monthly tenancies. To show fraud he relies upon representations of the amount of rentals received. The only evidence to shbw the street encroachments xyas a paper purporting to be a survey made by a city surveyor, but no attempt was made to lay any foundation for its receipt in evidence, and proper objection and exception xvere taken to the admission of it.

In view of the state of the record thus outlined we Iiave no alternative for the granting of a new"trial. ' '

The judgment should be reversed and a new trial granted, with costs to abide the final award- of costs. '

Ingbáham, P. J., McLaughlin, Laugi-ilin and Dowling, JJ., concurred. . .

Judgment reversed, nexv; trial ordered, costs, to abide event.  