
    Henry Muhlker, Resp’t, v. Jacob Ruppert, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed January 14, 1891.)
    
    Vendor and purchaser—Title—Description.
    Defendants refused to accept title of a certain lot on the ground that the adjoining lot, the easterly line of which began a certain distance from the corner of the block, would overlap it five feet. Held, that as the source of the title of said next lot was through foreclosure of a mortgage which described said easterly line as starting at or in front of the middle of a party loall, and the westerly line as running through a party wall, both of which were erected before the mortgage was given and were sufficiently located, the party walls were fixed monuments which sufficiently located and determined the land.
    
      Appeal from an order of the general term of the superior court of the city of New York, reversing a judgment upon the facts as well as the law entered upon a decision of the special term.
    
      Ashbel P. Fitch, for app’lt; Austen G. Fox, for resp’t.
    
      
      Affirming 14 N. Y. State Rep., 734.
    
   Haight, J.

This action was brought to compel the specific-performance of a contract for the purchase of real estate. The defense was that the plaintiff did not have title to the westerly-five feet of land embraced in the contract.

The land contracted to be conveyed is located in the city of New York on the southerly side of One Hunded and Twenty-fourth street, and has a frontage upon that street of thirty-nine feet commencing at the intersection of Fourth avenue, and westerly therefrom. One Grace T. Turnbull, formerly Smith, is the owner of the lot adjoining on the west, whose title was derived from the same source as that of the plaintiff, but of prior date. Her lot has a frontage of eighteen feet, and commences at a point,, as is claimed, 298 feet easterly from the intersection of Madison avenue with One Hundred and Twenty-fourth street. It is contended on the part of the appellant that the easterly line of Madison avenue is but 400 feet from the westerly line of Fourth avenue, and that, consequently, Mrs. Turnbull's lot laps over five feet upon the lot embraced in the contract in question; whilst on the part of the plaintiff it is claimed that at the time of the conveyance to Mrs. Turnbull the distance between the two avenues at this point was 405 feet

But under the view taken by us of this case it becomes unnecessary to consider this question or construe the statutes under which Madison avenue was laid out as an avenue of the city of New York.

The lands upon the southerly side of One Hundred and Twenty-fourth street, in the block in question, formerly belonged to-Thomas Fealey and David Houston, who erected twelve buildings thereon, including the one covering the lot now owned by Mrs. Turnbull. Her title is derived through the foreclosure of a mortgage which was given to her by Fealey and Houston. The mortgage describes the property as beginning at a point on the southerly side of. One Hundred and Twenty-fourth street distant 298-feet easterly from the corner formed by the intersection of the easterly line of Madison avenue with the southerly side of One Hundred and Twenty-fourth street at or in front of the middle of a party wall; running thence southerly and parallel with Madison avenue and partly through the centre of said party wall, 100 feet and 11 inches to.the centre of the block; thence easterly in the centre line of the block and parallel with One Hundred and Twentv-fourth street, eighteen feet; thence northerly and parallel with Madison avenue and partly through the centre of a party wall, 100 feet and 11 inches to the southerly side of One Hundred and Twenty-fourth street, and thence westerly along the southerly side of One Hundred and Twenty-fourth street, eighteen feet to the place of beginning.

So that it will be observed that the beginning point of Mrs. Turnbull’s land was at or in front of the middle of a party wall, and that this party wall formed a portion of the westerly boundary of her lot; that the easterly line also passed through a party wall, which, in part, formed the eastern boundary of her lot. The testimony of Houston is to the effect that the building upon this lot was erected before the mortgage was given to Mrs. Turnbull; that the house was known as No. 68; that it was their intention to mortgage to her the lot covered by the house. It appears to us that these party walls are fixed monuments which sufficiently locate and determine her land. The evidence sufficiently locates the party walls referred to; they are the easterly and westerly walls to the house known as JSTo. 68 One Hundred and Twenty-fourth street.

Our attention has been called to the case of Smyth v. McCool, 22 Hun, 595, in which it was claimed a different conclusion was reached. But our examination of that case leads to no such result. The description in that case began at a point in the easterly line of Madison avenue distant sixty-three feet northerly from the crossing formed by the intersection of the northerly line of Sixty-first street; thence running northerly along the easterly line of Madison avenue, sixteen feet; thence easterly and parallel with Sixty-first street and part of the distance through the centre of a party wall, etc.

The court, in commenting on the language used in the description, says that it ran along “ Madison avenue sixteen feet, not sixteen feetto the center of a party wall,” and then argues that it ran to no point or monument which would fix the boundary of the lot. But it will be observed that in the case under consideration the line commenced at a point on One Hundred and Twenty-fourth street, ninety-eight feet from the intersection of Madison avenue, at or in front of the middle of a party wall, thus fixing and describing the monument from which the boundary of the lot commenced.

But, again, as we have already stated, Mrs. Turnbull derived her title through a foreclosure of her mortgage and a sale had thereunder, and it appears that prior to such foreclosure Fealey and Houston had conveyed the lot covered by the mortgage to Cornelius J. McCarthy, describing it as known as street No. 68 One Hundred and Twenty-fourth street, and as eighteen feet wide, distant eighty-nine feet from the westerly line of Fourth avenue as widened, just the width of the plaintiff’s land, and McCarthy had conveyed the same to one Henry Magets, describing it in the same way, and. that Mrs. Turnbull, in her complaint asking for a foreclosure of her mortgage, sets up these conveyances and alleges them to be conveyances of the mortgaged premises, thus asserting that the lands covered by these deeds were the same as that covered by her mortgage, and we do not understand that she has ever made any other claim.

We, consequently, are of the opinion that the order of the general term should be affirmed, and that judgment absolute should be ordered against the appellant upon the stipulation, with costs.

All concur.  