
    William Sauter, Plaintiff, v. Christian Frank, Defendant.
    (Supreme Court, New York Special Term,
    May, 1910.)
    Specific performance — Performance by complainant — Substantial performance.
    Vendor and purchaser — Quantity, condition and description of property— Failure to convey quantity — Materiality of deficiency.
    It is not sufficient to excuse a vendee from the performance of a contract for the purchase of real estate consisting of a tenement building situated on a lot twenty feet wide and sixty-two feet deep that the wall of an adjoining owner encroaches between four and five inches on the rear of the lot, but a reasonable compensation should be made to the purchaser for the deficiency out of the purchase price.
    Action for specific performance.
    Appel & Taylor, for plaintiff.
    Delany & St. John, for defendant.
   O’Gorman, J.

The plaintiff rejected title on the ground that the wall of an adjoining owner encroaches four and one-half to four and three-quarters inches on the rear of defendant’s lot, and he sues to recover the installment paid on account of the purchase and to have the amount adjudged a lien upon the premises. The defendant counterclaims and prays for specific performance, with an abatement to the vendee for the deficiency. The premises agreed to be purchased are situated on the west side of Ninth avenue, twenty feet five inches north of Forty-second street, in the borough of Manhattan. They consist of a lot twenty feet wide and sixty-two feet in depth, with an old four-story brick tenement erected thereon. The purchase price of $53,000 was intended to embrace the good will and chattels of a retail liquor business conducted bv the defendant in the store upon the premises. While it is a familiar principle in a case of deficiency in the quantity of land agreed to be sold that the vendee may seek specific performance with an abatement in the price for the deficiency, the doctrine is also well established, although less frequently invoked, that a vendee may be compelled to perform and accept compensation as an indemnity against defects which are of small importance and not material to the purchaser’s enjoyment of the property. Merges v. Ringler, 34 App. Div. 422.; Foley v. Crow, 37 Md. 60; Bispham’s Equity (8th ed.), § 839; 2 Kent, 475. The rule is stated in Bispham’s Principles of Equity, section 389, as follows: “It- is settled that immaterial deficiencies will not deprive the vendor of his right to have the contract performed as against the vendee, provided that the deficiencies are such as may he compensated in money. Under such circumstances the vendee may be compelled to take the property and a suitable deduction will be made in price; but if the deficiencies are material and important, the vendee will not be compelled to take the property. He is entitled to have what he bargained for, and it would obviously be extremely unjust to force anything upon him which he had not designed or contracted to buy. If there is a failure in that which is an inducement to the purchase he will not be compelled to take.” It is not pretended that this four and one-half inch strip on the extreme rear of the yard was an inducement to the purchaser, or that it is in any conceivable manner essential to the vendee’s enjoyment of the property. The value of the premises is diminished, if at all, but in a comparatively slight degree in consequence of the encroachment. A difference of four or five inches in depth of a city lot is generally of no importance and rarely, if ever, enters into the negotiations of the parties. Under the undisputed evidence, based upon the value of the lot, $78 will amply compensate for the deficiency, and it would be manifestly inequitable to defeat a $53,000 purchase by a defect so inconsiderable that it can be adequately compensated for by such a small sum. Specific performance is not to be prevented by trivial objections or defects which can be remedied or compensated for, provided the purchaser gets substantially what he contracted for. 26 Am. & Fug. Ency. of Law, 108, 109. Judgment for the defendant, with an'abatement of $78 from the purchase price, with costs.

Judgment accordingly.  