
    Anna Oppenheimer, Appellant, v. The Knepper Realty Company, Respondent.
    (Supreme Court, Appellate Term,
    March, 1906.)
    Vendor and purchaser—Title and incumbrances — Party wall agreement: Performance of the contract — Tender of performance by purchaser — When unnecessary.
    An agreement between the different owners of adjoining premises that in case of the destruction of a party wall thereon it shall be rebuilt at their joint expense, the agreement being declared in terms to constitute a covenant running with the land, is an incumbrance, and the vendee under a contract to convey one of the lots and the building thereon is under no obligation to accept a deed.
    The incumbrance being one not within the power of the vendor to remove, the vendee need not make tender of performance or raise the particular objection at the time fixed for closing the title; and, in the absence of evidence to show that the vendor could, if the objection had been made at that time, have caused the removal of the incumbrance, the vendee is entitled to recover the money paid ofi account of the contract and her reasonable d’amages due to the vendor’s inability to perform.
    
      Appeal by the plaintiff from a judgment in favor of the defendant rendered in the Municipal Court of the city of Mew York, seventh district, borough of Manhattan.
    Louis H. Levin, for appellant.
    Joseph Rosenzweig, for respondent.
   Scott, J.

Action to recover deposit on a contract for the sale of real estate and damages for nonfulfillment. The property involved consisted of a lot of land and building on Second avenue. The description in the contract indicated that the northerly wall of the building was a party-wall, but was silent as to the southerly wall. The defendant-agreed to convey the property free from all incumbrances except as stated in the contract. In fact, the southerly wall was a party-wall, existing under two agreements between former owners of the lot in question and the owners of the lot adjoining on the south. These agreements are declared to be perpetual and to constitute covenants running with the land. Both agreements provided that, in case of destruction, the wall was to be rebuilt at the joint expense of the owners of both lots. There can be no doubt that these party-wall agreements constituted an incumbrance upon the property, which prevented compliance by defendant with the terms of its contract and relieved plaintiff’s assignor from the obligation of accepting a deed., O’Neill v. Van Tassell, 137 N. Y. 297. It is urged, however, and the justice apparently considered that this particular objection was not raised at the time the parties met to conclude the sale, and that it must, therefore, be deemed to have been waived, and there is much question whether plaintiff’s assignor made any effectual tender of performance on his part. The existence of the party-wall agreements made it impossible for the defendant to fulfill its contract according to its tenor on the law day. The rule is that tender of performance on the part of the vendee is dispensed with in a case where it appears that the vendor is disabled from performance on the day fixed therefor. In such a case, tender of performance on the part of the vendee would he a mere idle ceremony, and the vendee may, without tender or demand, sue for the money paid on the contract and for damages. Ziehen v. Smith, 148 N. Y. 558. This rule, however, does not apply when it appears that the incumbrance constituting an objection to the title is one which is within the power of the vendor to remove. In such a case, the vendee may not maintain an action unless he tenders performance and makes his objection at the time fixed for performance; for he will then be deemed to have waived the objection. But if the incumbrance be one not within the power of the vendor to remove, the vendee, in order to maintain an action, need not make tender or raise the particular objection at the time fixed for closing the title. Higgins v. Eagleton, 155 N. Y. 466. There are certain incumbrances as to which it may be presumed that the vendor, if his attention were called thereto, could and would remove, such as an overdue mortgage, or taxes, or a servitude in favor of other property owned by him. Where, however, the incumbrance consists, as in the present case, of a servitude in favor of the property of a stranger, there is no presumption that it lay within the vendor’s power to remove or extinguish the incumbrance. In fact, the presumption, if any there be, is quite the other way. Such an incumbrance, therefore, is not waived because not raised at the time fixed for performance of the contract, when other objections, untenable in their nature, were raised; and its existence excuses any lack or deficiency there may have been in the vendee’s tender and demand of performance. Ho evidence whatever was offered to show that the vendor could, if the objection had been made at the time, have caused the removal of the incumbrance. In the absence of such evidence, the plaintiff was entitled to recover the money paid on account of the contract and the reasonable damages due to defendant’s inability to perform.

O’Gobman' and Hewburger, JJ., concur.

Judgment reversed and new trial granted, with costs, to appellant to abide event.  