
    German-American Real Estate Title Guarantee Company, Respondent, v. Mary E. Meyers and Others, Defendants. The Collins Building and Construction Company, Purchaser, Appellant.
    
      Vendor and vendee — marketable title—unconstitutionality of chapter 670 of 1869 as rega/rds compensation for buildings erected on land laid out on a map for a street.
    
    In a proceeding to compel a purchaser under a mortgage foreclosure sale to complete his purchase, it was objected’ that several feet of the premises were included in a street originally laid out by the owners of the land and after-wards widened upon the permanent plan of tlie• commissioners appointed under chapter 670 of the. Laws of 1869, but it appeared that no steps had. been taken ' to open the avenue as widened or to condemn the land thus required. It was also objected that the dimension -of the premises in one of the boundaries thereof was only eighty-two feet instead of eighty-seven,' as required by the description under which the property was sold, but the record failed to disclose what the actual distance was; and although, in answer to a further objection by the purchaser- that one of the walls of the building rested upon land -other than that conveyed, it was claimed that such other land was, at the time of the execution, of the mortgage, owned by the mortgagor who erected the ■ building, the record disclosed no proof of such fact. \
    
      Held,- that the order requiring the purchaser to complete the sale should be reversed and the matter be remitted to the Special Term to take further proofs in the particulars mentioned.
    The provision of chapter 670 of the Laws of 1869 that “if any buildings shall be erected on the land of any avenue or street as laid out on the said plan after the filing of said map, no compensation shall be paid to the owner thereof o.n the opening of said street,” is unconstitutional.
    " Appeal by' the purchaser herein, The Collins Building and Construction Company, from an order of the Supreme Court, made at the Kings County Special Term, and entered in the office of the clerk , of the county of Kings on, the 26th day of March,' 1898, requiring it to complete its purchase of premises sold under a judgment of foreclosure rendered in the above-entitled action,
    
      Charles S. Bloomfield, for the appellant.
    
      Charles Buston, for the respondent.
   Cullen, J.:

The appellant declined to carry out its purchase on the ground that the sheriff’s deed would not convey a good .title to the premises sold. The property was sold by the following description :

“ All that certain plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being in the city of Brooklyn, county of Kings and State of New York, bounded and described as follows, to wit: Beginning at a point on the westerly side of Richmond street distant 133 feet 9 inches southerly from the southwesterly corner of Richmond and Fulton streets; running thence westerly on a line at right angle's with Richmond street 87 feet; thence southerly and parallel with Richmond street 107 feet to the northerly line of lot No. 464 on a map entitled Map of the Rapelye property on the Brooklyn and Jamaica Railroad and turnpike, made by Martin G. Johnson, and filed in the office of the .register of Kings county; thence easterly and again on a line at right angles with Richmond street, and along the said northerly line of lot No. 464 87 feet to the westerly side of Richmond street, and thence northerly along the westerly side of Richmond street 107 feet to the point or place of beginning.”

On this property are six houses, inclosed, but the construction of which is not entirely completed.

The first objection is that seventeen feet of the southerly lot of the premises is included in Force Tube avenue, as designated by the commissioners appointed under chapter 670 of the Laws of 1869, to lay out a plan for roads and streets in the towns- of Kings county. The avenue was originally laid out by the owners of a large tract of land, which included the premises in question. When the-'commissioners laid out the county towns they retained this avenue as. a street on the permanent plan for the improvement of these towns, but increased its width. No steps have been taken to open the avenue as widened, or to condemn the land required for the widening. The act of 1869 provides that If any buildings shall be erected on the line of any avenue or street, as laid out on said plan after the filing of said map, no compensation shall be paid to the owner thereof on the opening of said street.” This provision is unconstitutional and void, and the action of the commissioners in laying out the street created no incumbrance on the land. (Matter of Opening Rogers Avenue, 29 Abb. N. C. 361; Forster v. Scott, 136 N. Y. 577.) In several of the deeds found in the mortgagor’s chain of title the premises are bounded by Force Tube avenue, or by its side. If there were but one Force Tube avenue this reference to it in the conveyances might constitute a dedication of any land of the grantors lying within its limits. But the dimensions given in the deed show plainly that reference was made to Force Tube avenue as originally laid out by the property owners, not as defined by the commissioners. This objection is, therefore, not well taken.

The second objection is that the dimensions of the premises on the southerly line are only eighty-two feet instead of eighty-seven. In the conveyance to the mortgagor this line is described as follows : “ thence along the northeasterly side of Force Tube avenue 150 feet to the lot No. 464, and. thence again easterly along said lastmentioned lot 82 feet, more or less, * * * to Richmond street.”

From this description the presumption is that the line is but eightytxvo feet in length. As it runs between two fixed monuments, Force Tube avenue and Richmond street, it is undoubtedly true that it carries all the land between those two streets, even though the distance be in excess of eighty-two feet. The counsel for the respondent in his brief asserts that the distance is actually eighty-seven feet; but I cannot find a positive allegation to that effect in the record. The nearest approximation to proof on that subject is á diagram or survey introduced in evidence, in which it appears that there is a distance of eighty-seven feet from Richmond street to an oblique line in the rear, but there is nothing on the map to show that that oblique line is the line of Force Tube avenue, nor does the'name of that avenue appear on the map. Further, there is no evidence in the case to show that in this respect the survey is-correct.

The third objection is that the. northerly wall of the northerly building on the premises stands, not on the premises, but on land to the north. The surveyors of the parties differed in their testimony on this question. The wall is but four inches in width. The purchaser’s surveyors clamed that the wall was four and a half inches off the line. The plaintiff’s surveyors claimed that the center line of the wall was one inch off at the front of the house, and one-lialf inch south at the rear ; and so the referee, to whom the court referred the matter, found. I doubt if this, discrepancy between the surveys is very material. However., the question is settled in favor of the plaintiff. By the terms of sale the purchaser did not buy any.particular buildings or structures, but a certain plot of land with the-structures that were on it. Therefore, if he can get a good title to the land purchased, and the right to maintain the structures on it as they existed at the time of his purchase, he gets all he bargained for. The case falls within that of Hendricks v. Stark (37 N. Y. 106) and is to be distinguished from that of Spero v. Shultz (14 App. Div. 423), where the contract was for the sale of a specific house and lot. By the plaintiff’s survey, however, it appears that only one. inch of the northerly wall stands on the premises, an extent, of course, insufficient to maintain the structure. If this was a party wall the purchaser would have a right to the support of the whole wall; and, under the view I have expressed as to the construction of his agreement to purchase, he would have no ground for . complaint. But nothing of the .kind appears in the record before us. It is stated in the brief , of the respondent that the mortgagor was, at the time of the execution of the mortgage, the owner of both the mortgaged premises and the premises adjoining on the north, and that she erected the buildings'. If these are the facts, the wall was a party wall; or even if it stood entirely off the line, the purchaser at the sale in this action would have the right to its support for his buildings, and the whole difficulty would he cured. (Rogers v. Sinsheimer, 50 N. Y. 646.) But here again I cannot find in the record any proof of these facts. It may be they were conceded on the argument at Special Term, but this we cannot assume. ' The order appealed from must, therefore, be reversed, but the matter should be remitted to the Special Term for further proofs, so that, the plaintiff, if he can, may substantiate his statements as to the ownership of the property, the construction of' the buildings, and the actual distance between Force Tube avenue as laid out by the property owners, and Richmond street.

The amount paid the surveyors for expert testimony and maps was improperly allowed as disbursements in the proceeding.

The order appealed from should be reversed, and a further hearing ordered before the Special Term, with ten dollars costs and disbursements to the appellant. '-

All concurred.

Order reversed, with ten dollars costs and disbursements, and matter remitted to the Special' Term for further hearing.  