
    Rosie Heimbinder, Appellant, v. Daniel Sullivan, Respondent.
    Second Department,
    December 30, 1908.
    Court—jurisdiction of Municipal Court, city of Mew York — allegations not raising question of title.
    A defendant, sued in the Municipal Court of the city of New York for the recovery of earnest money paid on a contract to sell lands, does not show that a question of title is involved so as to oust that court of jurisdiction by merely alleging that the plaintiff refused a conveyance on the ground that the defendant could not give a marketable title or convey according to the terms of the contract and that “ violations of the tenement house department ” were on file against the premises.
    An issue as to whether incumbrances affect the marketability of a title does not involve a question of title.
    Appeal by the plaintiff, Rosie Heimbinder, from two orders of the Municipal Court of the city of Hew York, borough of Brooklyn, rendered on the 22d and 30th days of September, 1908, respectively.
    
      H. Cook, for the appellant.
    
      Clarence B. Campbell, for the respondent.
   Gaynor, J.:

This is an action to recover back the amount paid by the vendee to the vendor on a contract of sale of real estate. The defendant filed an answer professing to state facts showing that the title to real estate will come in question, as permitted by section 179 of the Municipal Court Act, so as to oust that court of jurisdiction; whereupon an order of discontinuance was entered. The plaintiff moved to have this order vacated and the cause restored to the calendar, which was denied, and an appeal is taken from both orders. '

The answer does not state facts showing unequivocally that title to real estate will come in question, as it had to do to be of any effect. It states that the plaintiff refused to accept the deed of conveyance tendered by the defendant under the contract, “ claiming that the defendant did not have a good and marketable title to said premises and could not give a deed of the same; that he could not convey under the terms of the contract and that there were violations of the tenement house department on file against the said premises”. It does not appear unequivocally from this that the dispute was about the title, i. e., the ownership of the land, but rather about a question of encumbrance, which is not a dispute about the title (Smith v. Riggs, 2 Duer, 622; Collins v. Adams, 15 Civ. Proc. Rep. 384). The defendant may have the title, and yet may not be able to convey what is called a “ good and marketable title”, or “under the terms of the contract”, but only because of some encumbrance, and the question of an encumbrance is not a question of title.

The orders should be reversed and the ease tried.

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

Orders of the Municipal Court reversed and the case directed to be tried, costs to abide the event.  