
    Solomon Bergman and Abraham Lefkowitz, Respondents, v. David Klein, Appellant.
    
      Encroachment of the wall of a building on an adjoining city lot — what case is not' covered by section 1499 of the Code of Civil Procedure requiring that an action for' its removal be brought within one year—marketable title.
    
    Section 1499 of the Code of Civil Procedure, which provides that an action to-recover possession of real property cannot he maintained “where in any city the real property consist of a strip of land not exceeding six inches in width, upon which there stands the exterior wall of a building erected partly upon, said strip and partly upon the adjoining lot, and a building has been erected' upon land of the plaintiff abutting on the said wall, unless said action be commenced within one year after the completion of the erection of such wall or within one year after the first day of September, eighteen hundred and ninety-eight,” only applies to a case where the owners of both pieces of land have-erected buildings whose walls abut one on the other, and who have thereby apparently made a practical location of the boundary line.
    It does not apply to a case where the wall of a building encroaches for a distance of three inches on the adjoining lot, upon which latter lot a buildinglias been erected in such a manner as to leave a. considerable vacant space-between the rear end of the building and the encroaching wall. In such a case the encroachment of the building will justify a contract vendee of the lot-upon which it encroaches in refusing to complete his purchase.
    Appeal by the defendant, David Klein, from a judgment of the Municipal Court of the city of New York, in favor of the plaintiffs, entered on the 27th day of November, 1903.
    
      Richard Cohn, for the appellant.
    
      Jacob W. Kahn, for the respondents.
   Hirschberg, P. J.:

The judgment awards to the plaintiffs the amount of a deposit made by them with the defendant under a contract' for the sale of real estate, the title of which they rejected as unmarketable. It-also includes certain expenses incident to the examination of the-title. The only objection to the title was the fact that the building-on the property encroached three inches on the adjoining land, and-, it is conceded by the appellant that if this constituted a valid ground! ■for tkei plaintiffs’ refusal to accept a conveyance, the judgment ¡appealed from is proper.

There is no building on the adjoining property abutting upon the -defendant’s encroaching wall, and the decision was rendered upon the theory that the provisions of ¡section 1499 of the Code of Civil Procedure have, therefore, no- application to the case., The decision rseems to be correct. In the section of the Code of Civil Procedure referred to it is provided that an action to recover possession of real property cannot be maintained where in any city the real property ■consist of a strip of land not exceeding six inches in width, upon which there stands the exterior wall of a building erected partly upon said strip arid partly upon the adjoining lot, and a building .has been erected upon la/nd of theplamtiff abutting on the said wall, unless said action be commenced within one year after the completion ■of .the erection of such wall or within one year after the first day of .September, eighteen hundred and ninety-eight.” The section further provides that an action for damages may be maintained if commenced within the further period: of one year, and that upon the ¡satisfaction of a judgment recovered in such action the plaintiff’s title to the strip of land upon which said wall encroaches shall be transferred to and vest in the defendant, but that if neither an action of ■ejectment or for damages be brought within the period limited, the person in possession of such land shall be deemed to have an easement in the strip of land so long as the wall partly erected thereon :shall stand.

The premises which the defendant contracted to sell to the plaintiffs are known as No. 146 Lynch street in the borough of Brooklyn. The three-inch encroachment is on the lot adjoining on the west. There is a building on the westerly end of that lot fronting ■on Marcy avenue, but a considerable vacant space exists between "the rear or easterly ' end of thait¡ building and the defendant’s ■encroaching wall. Neither action! specified.in section 1499 of the -Code of Civil Procedure (supra) has been brought, and the time "therefor had expired at the time set by the parties to this action for the closing of title under their contract.

The appellant’s contention' is that the provisions of the Code of «Civil Procedure which I have cited relate to the case of an encroaching wall upon which the adjoining land abuts equally as to the case where a building upon the adjoining land abuts on the encroaching wall. I think, however, the statute only applies to a case where the owners of both pieces of land have built buildings whose walls abut one on the other, and who have thereby apparently made a practical location of the dividing boundary. This construction is in accordance with the obvious meaning of the language used, viz., where “ a ■ibuilding has been erected * * * abutting on ” the encroaching wall. This appears to have been the view taken by the Appellate Division in the first department in Volz v. Steiner (67 App. Div. 504), Mr. Justice Ingraham writing (p. 512) that “ where there is such an encroachment, and the owner of the lot upon which it exists has, by erecting a building upon his lot, practically located the Vine between the two pieces of land, in such case the owner of the land encroached upon must commence an action within one year ■after the encroachment, or lose his right to maintain such an action.”

In that case it was held that the Code provisions in question are •constitutional. In the view taken herein it is unnecessary to pass upon that question. The objection to the title was a valid one and justified the respondents in refusing to complete the purchase. ( Wilhelm v. Federgreen, 2 App. Div. 483; affd. on opinion below, 157 N. Y. 713.) It follows that fhe judgment should be affirmed.

All concurred.

Judgment of the Municipal Court affirmed, with costs.  