
    Meyer v. Boyd.
    
      (Supreme Court, General Term, First Department.
    
    January 28, 1889.)
    Boundaries—Artificial Monuments—Control of Course and Distance.
    Defendant contracted to convey to plaintiff a lot in the city of New York on the southerly side of Eighty-First street, beginning 125 feet east from the southerly corner of Third avenue and Eighty-First street, having a front of 25 feet, and a depth of 100 feet 3 inches, “be the said several distances and dimensions more or less. ” Also described as being the same premises conveyed to defendant by a certain deed. By that deed the premises were described as lot No. 34, according to a map made by Charles Clinton, a surveyor. It appeared that the block in which this lot was situated was 10 feet longer than it was marked on the Clinton map, and that the owners of the several lots had had them readjusted so as to distribute the surplus pro rata, the result being that lot No. 34 commenced 127 feet 1 inch east from the corner of Third avenue, instead of 125 feet, and extended correspondingly further east; that the owner of the lot on the west had erected a division wall on that basis between his lot and No. 34, and the owner of the lot on the east had conveyed it on the same basis. Defendant had occupied No. 34, as so located, from 1868 to the present time. Field, that plaintiff could not rescind the contract on the ground that defendant could not give title to the lot described in it. The doctrine of natural or artificial monuments, as prevailing over courses and distances, applies.
    On exceptions from circuit court, New York county.
    Action by Hermann Meyer against William C. Boyd, to recover payments made by plaintiff on a contract to convey a lot in the city of New York. The court directed a verdict for plaintiff, and ordered defendant’s exceptions to be heard at general term.
    Argued before Van Brunt,á?. J., an'd Brady and Macohber, JJ.
    
      Abraham L. Jacobs, for plaintiff. Benjamin F. Kissam, for defendant.
   Brady, J.

This action was brought to recover the sum of $1,770 and interest, for the alleged failure of the- defendant to perform his part of a contract for the sale and purchase of a lot of land on the south side of Eighty-First street in this city. The contract between the parties was dated the 12th of March, 1887. The controversy arises from the asserted incompetency of the defendant to convey the premises as described in the .contract. The lot in that instrument is said to be one on the southerly side of Eighty-First street, beginning 125 feet easterly from the southerly corner of Third avenue and Eighty-First street, and having 25 feet front and rear by 100 feet 3 inches in depth on each side, be the said several distances and dimensions more or less. And further, being the same premises conveyed to the party of the first part, (that is the defendant) by Peter Wooley anci wife by deed dated April 1,1868, and duly recorded. The deed to the defendant, thus mentioned in the agreement between the parties to this action, conveys a lot in the Nineteenth ward of this city, which was part of the Harlem commons, and known on a map of them made by Charles Clinton, surveyor of the city of New York, as No. 34, and bounded and described as commencing at a point on the southerly side of Eighty-First street, distant 125 feet easterly from the southerly corner of Third avenue and Eighty-First street, etc., “be the said distances more or less.” It appeared upon the trial, from an actual survey, that the lot commences 127 feet 1 inch from the southerly corner of Third avenue and Eighty-First street, and not 125 feet; but this disparity seems to have arisen from the fact that upon the Clinton map the block was marked as 600 feet in length, when in fact it was 610 feet on the lines of the streets. It further appears that the first map of the Harlem commons was made by Charles Clinton in December, 1824, and that from December, 1829, down to December, 1861, the descriptions in the several conveyances relating to this particular locality were by the block numbers on the Clinton map, and one conveyance in 1848 of lot Ño. 34, in addition to this map number, is described as 25 feet in front and rear and 100 feet deep. In October, 1866, a conveyance was made of the lot in dispute, describing it as 'No. 34 on the map already mentioned, and as beginning 125 feet from the Third avenue, with other distances (“be the said distances more or less.”) In 1868 the conveyance of lot No. 34 was made to the defendant by the same description, and in making the contract with the plaintiff it was expressly stated, and therefore expressly understood, that the premises purchased by the plaintiff were those thus conveyed to the defendant. There is no dispute as to the performance by the defendant of the contract in all respects other than the one particularly named. It further appears that the defendant occupied the lot known as Ño. 34 on the Clinton map as it exists, namely, 127 feet and 1 inch distant from the Third avenue, from April 1, 1868, to the day of the trial, and that prior to November 17, 1877, a brick wall had been erected on the lot adjacent on the west, running about 82 feet 9 inches in depth from the southerly line of Eighty-First street, and distant 127 feet 1 inch from the Third avenue. It also appears that Mr. Ewen, who is a surveyor of many years’ experience, for a long time familiar with the Harlem commons, had frequently made surveys of them, and had ■examined the map called the “ Clinton Map, ” and knew of the error suggested about the length of the block on Eighty-First street. And, further, that at different times the owners, to adjust the surplus of 10 feet in the length of the block, had directed him to locate them by making a distribution of them pro rata over the entire front of the block, which gave a surplus of 5 inches to every 25 feet. He had surveyed, it appeared, 90 or 100 lots on that block on the basis of that distribution, and he testified that quite a number—at least 7 or 8—of buildings on that block had been built on that basis, making as he said, “the distribution come correct, between 2 and 3 feet of the 10 being distributed;” that his knowledge in regard to the buildings on the property began 20 years ago, as a surveyor in that immediate neighborhood, and that from that time down to the present buildings had been located as he stated, and 5 inches divided to every 25 feet lot within the bounds of the Harlem commons and Second and Third avenues. And he further said that lot No. 34 had its exact location according to the distribution which was adopted. The evidence, it is true, relating to the appropriation of the 10 feet over the ■entire front, as stated, was objected to, but it clearly related to the question of locality, and therefore of title, and was admissible, if for no other reason than to show possession and acquiescence, not only of the defendant, but others, on the corrected length of the block. It further appears that the adjacent lot to the one in question, on the west, in a deed dated December 30, 1882, is described as beginning 101 feet 8 inches from the Third avenue, running thence easterly 25 feet and 5 inches along Eighty-First street; thus making 127 feet I inch to the lot in question. And, further, that the lot adjacent to the one in question, on the east in a deed dated April 28, 1887, is described as beginning 152 feet 6 inches from the Third avenue, which is the easterly line of the lot in question. This array of facts seems to remove all doubt about the locality of the lot which the defendant intended to convey to the plaintiff, and all doubt of the defendant’s title to it. Adjacent owners, as we have seen, have conveyed their property upon the distance of the defendant’s lot from the Third avenue, being 127 feet 1 inch, and this acquiescence is strengthened by the erection, on the westerly side, of a brick wall upon the same theory. Independently of this monument, however, created by the building of the wall, the possession of the lot by the defendant from 1868, the acquiescence stated of the adjacent owners on both sides of it, the fact that the defendant undertook to convey it as it appeared on the Clinton map, and as it was conveyed to him, as we have seen by the terms of his contract with the plaintiff, and the absence of any dispute about it, the objection interposed is not meritorious, but technical. There is no pretense that the plaintiff could not acquire the title to the lot with the dimensions by which it was described, or that in any way he had been deprived of the area which those dimensions, would import. There can be no pretense that he would be subjected to any interference on the part of the adjacent owners, one of them having built a wall, and the other having conveyed his property, as already suggested, upon the understanding that the plaintiff’s lot was in fact 127 feet 1 inch distant from the Third avenue. In addition to this, the evidence shows that there existed a necessity for this change in consequence of and to correct the error that was made as to the length of the block. It was clearly the intention, it must be said, of all the grantors, including the defendant, to convey the lot. Ho. 34 as it- appeared on the Clinton map by the actual measurements approaching it, and this intention should govern. This is the rule in French v. Carhart, 1 N. Y. 96; White v. Williams, 48 N. Y. 344. And where there is. a doubt about the location it is to be ascertained and determined by all the facts in the case. Townsend v. Hayt, 51 N. Y. 656. And in Wendell v. People, 8 Wend. 183, it is said that in the construction of grants both courses, and distance must give way to natural or artificial monuments or objects, and courses must be varied, and distances lengthened or shortened, so as to conform to the natural or ascertained objects or bounds called for by the grant. See, also, White v. Williams, supra, where that case is cited and approved, and its doctrine applied. There is no reason why the error made in the Clinton map as to distance should prevail, and be allowed to affect the title of the defendant and others, under the facts and circumstances disclosed.. Each owner is protected by the readjustment, which controls and overcomes the original error, and subjects it to natural distances, and establishes monuments.. This is therefore not a case in which the doctrine of a doubtful title should be applied to relieve a purchaser from his obligation to complete. There is really no doubt whatever about the title of the defendant to the lot of land known as Ho. 34 on the Clinton map, and in his possession; nor is there any doubt, that he could convey it as provided in the contract of sale between himself and the plaintiff. For these reasons, in addition to those already assigned, it. seems to be imperative upon the court to direct judgment for the defendant, sustaining the exceptions, and ordering a new trial, with costs to abide the' final event. All concur.  