
    The Title Guaranty & Trust Co., Respondents, v. Charles Wehle, Appellant.
    (Supreme Court, Appellate Term,
    October, 1897.)
    Services for making a search. — Weight of evidence.
    Where the proof, made by a title guaranty company in an action brought by it to recover for making a search deliverable on April 29th, tends to show that, except as to two questions of incumbrances which were excepted from the company’s policy of title insurance, the search was completed on April 26th, and a clerk, who did not remember the transaction, but who made a memorandum that the certificate approving the title was delivered to the customer on April 29th, testifies to his belief in the correctness of the memorandum as made, a finding by the court that delivery was made on that day is justified.
    Appeal by the defendant from a judgment of the Second Judicial District Court in favor of the plaintiff for the sum of $163.80,-besides costs, in an action to recover upon two causes of action. The recovery by plaintiff was upon the second cause of action only, which was upon a special contract for examining the title of the premises and insuring such title.
    Charles Wehle, appellant, in person.
    William H. Stockwell, for respondents.
   Daly, P. J.

The second cause of action alleged in the complaint, and upon which alone the plaintiff recovered a judgment for $163.80, besides costs, is upon a special contract of employment of plaintiff by defendant, on or about April 17, 1895, to examine the title to premises on West Ninety-fifth street, in the city of New York, and to insure the title thereof, if approved by the plaintiff, for which the defendant agreed to pay $150.

It is alleged in the complaint that the plaintiff duly examined the title and on or before April 27, 1895, approved the same, subject to the encumbrances thereon, and was ready and willing and offered to insure the title, and that demand of the agreed sum had been made and refused. The answer was a general denial, and the question for the justice to determine was whether the plaintiff’s contract had been performed.

It appears from the written memorandum, which the plaintiff made, when the defendant applied to it to search the title and insure it, that the title was to be closed at 11 a. m., on April 27, 1897. The.evidence leaves no doubt that the agreement of the : plaintiff was to perforin the work of searching, and reporting to the plaintiff On that date. On the 26th of April, the. plaintiff wrote to the defendant that it could not complete the examination of the title in time' to close on April 27th, and would require about six days’ further time. The defendant replied on the same date by letter, saying that he would put' it off until Monday (the 29th), and that plaintiff was to try and have the search done then, and let him know whether it could do so.

The question for the justice to decide was whether the plaintiff delivered to the defendant, on the 29 th, the customary certificate of title. He says they did not and that he was compelled to make a search himself for the actual closing of the title oh May 2d. The plaintiff’s proof was that the certificate approving the title, subject to certain encumbrances, was made Out and given to a clerk of the company to deliver to the defendant; and a memorandum made by a clerk of the delivery of the certificate, on April 29, 1895, was put in evidence, the clerk testifying, that such memoranda were always made by him truthfully and according to the fact; but that he could not say that this particular memorandum was made on the day of its date; that it might have been made out later. The plaintiff’s proof also was that the search was actually Completed on the 24th, and that additional time was required by the plaintiff only to examine as to the identity of a certain John Reilly, who was covered with judgments, with the record owner of the premises, and also as to the amount due upon a certain mortgage. Inquiry on the former point was made of the defendant-by plaintiff on April 26th, and as to the latter point of other parties on the 23d. As these were the only questions apparently unsolved on the 26 th, and as the policy of insurance prepared by plaintiff excepted these encumbrances, it seems that it would have been entirely convenient for the plaintiff to furnish a certificate with such exceptions on the 29 th, the date the defendant required it. On the proofs before him, the justice could very well have found that the certificate was so furnished and his finding should not be disturbed.

The defendant was, undoubtedly, to pay the agreed fee of $150 on the date fixed, if the title was examined and the result of the examination was certified on that date, whether the company com eluded to insure or not; and it is, therefore, immaterial when the policy of insurance was made out and delivered, inasmuch as the defendant made no request for it. The only question in the case is whether the certificate of search was delivered on the 29 th. It is extremely improbable that, after the defendant had refused to wait longer than that date, the plaintiff would have failed to certify in time, since the examination had been substantially concluded before that date. It also seems improbable that the defendant, having until May 1st to close ,his title, should have communicated no further with the plaintiff, if he got no word from it on the 29th.

Judgment affirmed, with costs." ,

McAdam and Bischoff, JJ., concur.

Judgment affirmed, with costs.  