
    SASSERATH v. METZGAR.
    
      N. Y. Superior Court ;
    
    
      Equity Term, November, 1893.
    1. Specific performance ; Encroachment of building uponstreeth\ It seems that the encroachment upon the line of the adjoining street of the building on premises contracted to be sold, will defeat the right of the vendor to specific enforcement of the contract the same as would an encroachment upon an adjacent lot.
    2. The same?± Where, however, the testimony of surveyors as to the alleged encroachment is conflicting, the vendor’s witnesses testifying that there is none, and the encroachment claimed by the purchaser’s witnesses being very slight, and it appears that . the building was erected under the direction of the building department of the city,—the court is justified in finding as a fact that there is no encroachment; and in view of the further fact that no private individual can bring an action to remove or abate the alleged encroachment, will hold that the title is marketable and decree specific performance.
    3. Cases Cited.\ The authorities on the effect of encroachment by buildings and the remedy therefor fully collated and explained.
    
    Bill filed to enforce specific performance of contract.
    
      J. M. Marx & John H. V. Arnold, for plaintiff.
    
      E. Arnstein & A. C. Thomas, for defendant.
    
      
       See also the next case in this volume and note at end thereof.
    
   McADAM, J.

The bill is to specifically enforce a contract for the exchange of real property. The title is unobjectionable, and all the land is there. The defence urged is, that part of the northerly wall of the plaintiff’s building stands one inch upon the sidewalk or public street, and part of the easterly wall stands a little over an inch on the public sidewalk or street on that side. There can be no doubt, that on the sale of a house and lot the vendee is entitled to receive title to the land with four walls to the house, and these should stand on the land conveyed, that the purchaser may acquire an unimpeachable title to all. In this respect, the fact that one or more of the walls may be party walls, constitutes no objection (Hendricks v. Stark, 37 N. Y. 106, S. C., more fully reported, 4 Trans'pt App. 146). Specific performance is not to be defeated by trivial objections or defects which can be remedied or compensated for (22 Am. & Eng. Encl. of L. 956, and see case of encroaching wall brought within the rule. King v. Bardeau, 6 Johns Ch. 38, S. C., 10 Am. Decis. 312). But where the walls of the house sold encroach upon adjoining property, the defect may be fatal (Stokes v. Johnson, 57 N. Y. 673 ; Smyth v. McCool, 22 Hun, 595; and see Baron v. Korn, 127 N. Y. 224; Isear v. Burstein, 30 Abb. N. C. 71, S. C., 24 Supp. 918), for the encroachment may be proceeded against by action of ejectment (Bowie v. Brahe, 3 Duer, 35 ; and see 4 Duer, 676). Even an overhanging wall may be so proceeded against (Sherry v. Frecking, 4 Duer, 452). In.Stokes v. Johnson (supra) the court charged the jury, that if they found that the- house contracted to be sold did stand upon the lot of somebody else to the extent of one and one-half inches, it was a reasonable ground of objection to the title, and this was held to be no error. In Arnstein v. Burroughs (M. S. opinion N. Y. Supreme Ct., filed April, 1893), a similar encroachment of two inches was held fatal to the title offered. Where the cornices or gutters only project over, the appropriate remedy is nuisance (Aiken v. Benedict, 39 Barb. 400; Vrooman v. Jackson, 6 Hun, 326). Equity might in any of these cases hesitate before compelling a party to take title, where there were reasonable grounds for believing that he might be subjected to another law-suit to which there was no defence. That risk does not enter into this contention. True, surveyors produced by the defendant have testified to the existence of the alleged encroachment, but those produced by the plaintiff have testified that the lines of the plaintiff’s building are true and the walls all on her land, and do not encroach upon any part of the sidewalk or street. The variance in the surveys of the defendant’s surveyors shows that surveyors are liable to err, and the witnesses frankly admitted that surveys are not always strictly reliable, that they are apt to be influenced by weather and other causes. The alleged encroachment here is so slight that it is, under the circumstances, as reasonable to,, believe the testimony of the pláintiff’s witnesses, as those of the defendant. While useful as a guide, such evidence is not infallible. All the surveyors evidently intended to be accurate, but could not have been in view of the discrepancies which appear by their surveys. The court therefore finds, that the plaintiff’s witnesses have testified truthfully, and that there was in fact no encroachment whatever, and consequently no valid reason for not consummating the exchange according to the terms of the contract. The plaintiff’s building having been erected under the direction of 'the building department, it is safe to assume that its inspectors would not knowingly permit a permanent encroachment to be placed upon the sidewalk, a circumstance which favors the plaintiff’s contention, particularly in view of the fact that the alleged encroachment is one which no private individual can remove or abate (Griffith v. McCullum, 46 Barb. 561 ; Adler v. Elevated R. R. Co., 138 Id. Y. 173). It is reason- , ably certain that the defendant will get all he contracted for, and run no possible risk in taking title. It is in every sense marketable and free from doubt (see Hutton v. Webber, 60 N. Y. Superior Ct. R. 247, affd. 137 N. Y. 615). It follows that the plaintiff is entitled to a decree, the terms of which will be settled on notice.

In Sabriski v. Veloski, 25 Abb. N. C. 185, it was held that the court would not specifically enforce" a contract for the exchange of land, where that of defendant was described as being twenty-five feet wide, but was in fact but twenty-four feet with compensation in damages for the deficiency, but would leave' the parties to their remedy at law.

In. Boe v. Barry, 24 Weekly Dig. 5, the court refused specific performance where the vendor’s agent represented that the foundations of the building sold were about nine feet deep, when in fact they were but six feet deep, the deficiency making it impossible to put in a cellar without great expense.

In Keller v. Feldman, 70 Hun, 377, the contract for the sale of a house contained a covenant that one of the walls was an independent wall, but the deed delivered pursuant to the contract contained no such covenant, and the wall was not in fact an independent wall. The court on evidence establishing legal frahd, set aside the conveyance, and directed repayment of the purchase price.

Evidence by surveyors. The act of 1851 in relation to weights and measures (L. 1851, ch. 134, § 33 ; 2 R. S. 6 ed. 803) contained this provision: “Sec. 33. No surveyor shall give evidence in any cause depending in any of the courts of the State or before arbitrators, respecting the survey and measurement of lands which he may have made, unless such surveyor shall make oath, if required, that the chain or measure used by him was conformable to the standards which were the standards of the State at the time such survey was made.” This was superseded by the act of 1893 (L., 1893, p. 200, ch. 101) in these words:

“ Sec. 33. No surveyor shall give evidence in any cause depending in any of the courts of this State, or before arbitrators, respecting the survey or measurement of lands which he may have made, unless, if required, either such surveyor shall make oath, or it shall otherwise be shown that the chain or measure used by him was conformable to the standards of the State which were the standards of the State at the time such survey was made. An official certificate of any State, county, city, village or town sealer elected or appointed pursuant to the laws of this State, or the oath of such surveyor, that such chain or measure conformed to the State standard which shall have been furnished any such sealer pursuant to the provisions of the laws of this State, shall be fri77ia facie evidence of such conformity, and an official certificate made by any such sealer that the implement used in measuring such chain or other measure was the one provided under such laws for such purposes, shall be pri77ia facie evidence of that fact.”

See also as to testimony of surveyors, note at page 73 of this volume.  