
    Herman Meyer, Resp’t, v. William C. Boyd, App'lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    1. Title—Objection to.
    Defendant agreed to convey to plaintiff a lot in the city of New York. The premises were described in the contract of sale as being 125 feet from the southerly corner of Third avenue and Eighty-first street, and as being the same premises conveyed to the party of the first part by a certain deed. This deed conveyed a lot described as part of the Harlem Commons and known on a map made by Charles Clinton, as No. 34, and bounded and described as commencing at a point on the southerly side of Eighty-first street, distant 125 feet from the corner of Third avenue and Eighty-first street, be the said distances more or less. It appeared on the trial that the block on the Clinton map was marked as 600 feet in length when in fact it was 610 feet, and that the lot in question commenced 127 feet, one inch from the corner of Third avenue. It further appeared that at different times the owners of lots in the block had directed a surveyor to locate them by making a distribution of the surplus of ten feet pro rata over the entire front of the block, and that lot No. 34 had its exact location according to the above distribution at a distance of 127 feet one inch from Third avenue, and that the defendant had occupied lot No. 34 as thus located from April 1, 1868. That prior to the execution of the contract owners of the lots on either side had conveyed their lots, with reference to the distribution of the ten feet, and that a wall had been erected by one of the adjacent owners on the westerly side upon the same theory. In an action brought by plaintiff for damages for the alleged failure of defendant to convey the premises described in the contract. Held, that the objection interposed by the plaintiff was technical and not meritorious and that the title of the defendant to ihe lot in his possession, commencing at a point 127 feet, one inch from Third avenue and known as No. 34 on the Clinton map is good and that he could convey it as provided in the contract of sale.
    2. Same—Doubt as to location.
    Where there is a doubt about the location of premises it is to be ascertained and determined by all the facts of the case.
    3. Same—Intention must govern.
    The intention of a party to convey a lot as it appeared on a map by actual measurements approaching it must govern.
    4. Evidence—Admissibility.
    The evidence relating to the appropriation of the ten feet as it related to the question of locality and therefore of title, was admissible.
    Appeal from exception directed by the court to be heard at general term.
    
      Abraham L. Jacobs, for pl’ff j Benjamin F. Kissam, for deft.
   Brady, J.

This action was brought to recover the sum of §1,770 and interest for the alleged failure of the defendant to perform his part of a contract for the sale and purchase of a lot of land on the south side of Eighty-first street in this city. The contract between the parties was dated the 12th of March, 1887. The controversy arises from the asserted incompetency of the defendant to convey the premises as described in the contract. The lot in that instrument is said to be one on the southerly side of Eighty-first street, beginning 125 feet easterly from the southerly corner of Third avenue and Eighty-first street, and having twenty-five feet front and rear by 100 feet three inches in depth on each side be the said several distances and dimensions more or less. And further, being the same premises conveyed to the party of the first part (that is the defendant), by Peter Wooley and wife by deed dated April 1, 1868, and duly recorded. The deed to the defendant thus mentioned in the agreement between the parties to this action conveys a lot in the Nineteenth ward of this city, which was part of the Harlem Commons and known on a map of them made by Charles Clinton, surveyor of the city of New York, as number 34, and bounded and described as commencing at a point on the southerly side of Eighty-first street, distant 125 feet easterly from tho southerly corner of Third. avenue and Eighty-first street, etc., “be the said distances more or less.” It appeared upon the trial, from an actual survey, that the lot commences 127 feet, one inch from the southerly corner of Third avenue and Eighty-first street, and not 125 feet, but this disparity seems to have arisen from the fact that upon the Clinton map the block was marked as 600 feet in length, when in fact it was 610 feet on the lines of the streets. It further appears that the first map of the Harlem Commons was made by Charles Clinton in December, 1824, and that from December, 1829, down to December, 1861, the descriptions in the several conveyances relating to this particular locality were by the block numbers on the Clinton map and one conveyance in 1848 of lot number 34 in addition to this map number, is described as twenty-five feet in front and rear and one hundred feet deep. In October, 1866, a conveyance was made of the lot in dispute, describing it as number 34 on the map already mentioned, and as beginning 125 feet from the 'Third avenue, with other distances (“be the said distances more or less”).

In 1868 the conveyance of lot number 34 was made to the defendant by the same description, and in making the contract with the plaintiff it was expressly stated, and therefore expressly understood, that the premises purchased by the plaintiff were those thus conveyed to the defendant. There is no dispute as to the performance by the defendant of the contract in all other respects other than the one particularly named. It further appears that the defendant occupied the lot known as number 31 on the Clinton map as it exists, namely 127 feet, one inch distant from the Third avenue, from April 1, 1868, to the day of the trial, and that prior to November 17, 1877, a brick wall had been erected bn the lot adjacent on the west running about eighty-two feet nine inches in depth from the southerly line of Eighty-first street and distant 127 feet, one inch from the Third avenue. It also appears that Mr. Ewen, who is a surveyor of many years experience, for a long time familiar with the Harlem commons, had frequently made surveys of them, and had examined the map called the Clinton map and knew of the error suggested about the length of the block on Eightv-first street. And further, that at different times the owners, to adjust the surplus of ten feet in length of the block, had directed him to locate them by making a distribution of them pro rata over the entire front of the block, which gave a surplus of five inches to every twenty-five feet. He had surveyed, it appeared, ninety ara hundred lots on that block on the basis of that distribution, and he testified that quite a number, at least seven or eight, buildings on that block had been built on that basis, making, as he said, “the distribution come correct, between two and three feet of the ten being distributed;” that his knowledge in regard to the buildings on the property began twenty years ago as a surveyor in that immediate neighborhood, and that from .that time down to the present, buildings had been located as he stated, and five inches divided to every twenty-five feet lot within the bounds of the Harlem commons and Second and Third avenues. And he further said that lot number 31 had its exact location according to the distribution which was adopted.

The evidence, it is true, relating to the appropriation of the ten feet over the entire front stated was objected to, but it clearly related to the question of locality, and therefore of title, and was admissible if for no other reason than to show possession and acquiesence, not only of the defendant but others on the corrected length of the block. It further appears that the adjacent lot to the one in question on.the west in a deed, dated December 30,1882, is described beginning 101 feet eighty-eight inches from the Third avenue, running thence easterly twenty-five feet and five inches along Eighty-first street, thus making 127 feet, one inch to the lot in question. And, further, that the lot adjacent to the one in question on the east, in a deed dated April 28, 1887, is described as beginning 152 feet, six inches from the Third avenue, which is the easterly line of the lot in questiou. This array of facts seems to remove all doubt about the locality of the lot which the defendant intended to convey to the plaintiff, and all doubt of the defendant’s title to it. Adjacent owners, as we have seen, have conveyed their property upon the distance of the defendant’s lot from the Third avenue, being 127 feet one inch, and this acquiesencé is strengthened by the erection on the westerly side of a brick wall upon the same theory. Independently of this monument, however, created by the building of the •wall, the possession of the lot by the defendant from 1863, the acquiesence stated of the adjacent owners on both sides of it, the fact that the defendant undertook to convey it as it appeared on Clinton map, and as it was conveyed to him as we have seen by the terms of his contract with the plaintiff and the absence of any dispute about it, the objection interposed is not meritorious, but technical. There is no pretence that the plaintiff could not acquire the title to the lot with the dimensions by which it was described, or that in any way he had been deprived of the area which those dimensions would import. There can be no pretence that he would be subjected to any interference on the part of adjacent owners, one of them having built a wall and the other having conveyed his property, as already suggested, upon the understanding that the plaintiff’s lot was in fact 127 feet one inch distant from the Third avenue. In addition to this, the evidence shows that there existed a necessity for this change in consequence of and to correct the error that was made as to the length of the block.

It was clearly the intention, it must be said of all the grantors, including the defendant, to convey the lot number 34, as it appeared on the Clinton map by the actual measurements approaching it, and this intention should govern. This is the rule. French v. Carhart, 1 Comstock, 96; White v. Williams, 48 N. Y., 344. And where there is a doubt about the location, it is to be ascertained and determined by all the facts in the case. Townsend v. Hayt, 51 N. Y., 656.

And in Wendell v. The People, 8 Wend., 183, it is said that in the construction of grants, both courses and distances must give way to natural or artificial monuments or objects and courses must be varied and distances lengthened or shortened so as to conform to the natural or ascertained objects or bounds called for by the grant. See also White v. Williams, supra, where that case is cited and approved and its doctrine applied. There is no reason why the error made in the Clinton map as to distance should prevail, and be allowed to affect the title of the defendant and others under the facts and circumstances disclosed. Each owner is protected_ by the readjustment which controls and overcomes the original error, and subjects it to natural distances and establishes monuments. This is, therefore, not a case in which the doctrine of a doubtful title should be applied to-relieve a purchaser from his obligation to complete. There is really no doubt whatever, about the title of the defendant to the lot of land known as number 34, on the Clinton map and in its possession, nor is there any doubt that he could convey it as provided in the contract of sale between himself and the plaintiff. For these reasons in addition to those already assigned, it seems to be imperative upon the court to direct judgment for the defendant, sustaining the exceptance and ordering a new trial with costs to abide the final event.

Yan Brunt, Ch. J., and Macomber, J., concur.  