
    David Berger, Appellant, v. Henrietta Crist, Respondent.
    Second Department,
    October 4, 1907.
    Beal- property — vendor and purchaser — defective title.
    When the title offered by a vendor of lands is objectionable by reason of a defective acknowledgment of a deed in the chain of title, a failure to pay taxes and because a mortgage could not be paid off at any time as the contract" required, the vendee may rescind-and recover the earnest money.
    The failure to pay .taxes is not cured by an offer of the vendor to deduct the amount from the purchase money, thus leaving to the vendee the trouble of paying the tax. '. ' .
    Appeal by the plaintiff, David Berger, from'a, judgment of the Municipal Court of the city of New York in favor of the defendant, rendered after a trial before the court without a jury, dismissing the ' complaint. '
    
      The action was to recover $800 paid .by the plaintiff to the defendant on a contract of. purchase of real-estate.
    
      Adolph Feldblum, for the appellant.
    
      John A. Warren, for the respondent.
   Gaynor, J.:

The judgment should have been for the plaintiff. The parties met on the contraced ay, and according to the oral téstimony for the defendant at least two objections to the title were made by the plaintiff, viz., 'that there was a valid judgment lien against the property, and an insufficient acknowledgment to one of tlie deeds of conveyance in the defendant’s chain of title. That these objections were sufficient ivas not disputed. The defendant took an adjournment of three days to remove the defects. ■ On the adjourned day she had not done so. She took another adjournment of a week for the same purpose. On that adjourned day she had not obtained a sufficient--acknowledgment instead of the invalid one, but had obtained a suspension on appeal of the judgment lien. . The plaintiff refused" another adjournment and demanded back Ins deposit. The' justice decided against him on the ground that lie had not demanded performance. Ho such technical point Avas made by the defendant on .the trial; and moreover the evidence is that he did make .due demand. ' ' ' '■

According,to the testimony off the plaintiff, and the stipulation in Avriting óf the facts which the parties entered into on the rejection of the title,- the plaintiff on the contract, day also made two other objections, viz., that the taxes .were unpaid, and that the mortgage oil.the property could, not be paid off at any time as' the contract required/ These defects were not cured, ft is a mistake' to suppose that it suffices to deduct the amount óf the taxes from 'the .purchase money and leave the trouble of paying; the taxes to the purchaser. '. . •'

The'judgment should be reversed.

Jenks, Hooker, Rich and Miller, JJ., concurred.

■ Judgment of the Municipal Court revérsed and new trial;ordered,, .costs to abide the event. ~'.-  