
    Peter Raben, Respondent, v. Morris Risnikoff, Appellant.
    
      Contract of sale of a city lot — a deed which conveys a lot seven inches less in ividth and five feet less in depth held not to be a compliance therewith—what incumbrance does not constitute a breach—when the production and exhibition of the money is not essential to a tender.
    
    A contract for the sale of land described the premises as follows:
    “ All that certain lot, piece or parcel of-land, with the buildings and improvements thereon, known as and designated by the Street Number 1012 Willoughby Avenue, in the said Borough of Brooklyn, N. Y.
    ‘ ‘ The dimensions of said lot being Thirty-two (32) feet front and rear, .by One Hundred (100) feet in depth on each side, be the said several dimensions more or less and subject to a state of facts as a survey may show.”
    
      
      Held, that in the absence of evidence that the premises designated by the street number were in fact smaller than the dimensions specified in the contract, the vendee should not be required to accept a deed of a lot thirty-one feet and three inches wide by ninety-five feet deep as a compliance with the contract. The mere existence on the day when a title is to be conveyed of an incumbrance on the property to be conveyed, which it is within the power of the vendor to remove, does not constitute a breach of the contract, but if the vendee then makes a tender and demand of performance, and the vendor fails to remove the incumbrance or provide for its removal to the satisfaction of the vendee, the latter may maintain an action for a breach of the contract.
    Where the vendee informs the vendor that he has with him in cash the purchase price of the premises and states that he tenders such purchase price to him and desires the title papers, and the vendor makes no objection to the sufficiency of the tender, he waives the actual production and exhibition of the money.
    . Appeal by the defendant, Morris Risnikoff, from, a judgment of the Municipal Court of the city of New York, borough of the Bronx, in favor of the plaintiff, entered in the office of the clerk of said court on the 4th day of December, 1903.
    
      A. 8. Aaronstamm, for the appellant.
    
      Louis B. Boudin, for the respondent.
   Willard Bartlett, J.:

Louis Wax was the vendee and Morris Risnikoff, the defendant, was the vendor in a contract for the sale and purchase of real estate in the borough of Brooklyn. At the time and place fixed for closing the title, the vendee refused to accept a deed offered in behalf of the vendor, on the ground that there was a deficiency in the quantity , of the property offered to be conveyed, and on the further ground that there was a mortgage of $600 upon the premises which was not specified in the contract. The plaintiff sues as the assignee of Louis Wax, the vendee, to recover $150 paid to the vendor upon the execution of the contract, and also $100 dollars as -the reasonable expense of examining the title.

The property is described in the contract as follows: All that certain lot, piece or parcel of land, with the buildings and improvements thereon, known as and designated by the Street Number 1012 Willoughby Avenue, in the said Borough of Brooklyn, N. Y. The dimensions of said lot being Thirty-two (32) feet front and rear, by One Hundred (100) feet in depth on each side, be the said several dimensions more or less and subject to a state of facts as a survey may show.”

■ The deed offered in .fulfillment of this contract conveyed a lot thirty-one feet and three inches instead of thirty-two feet in width, and ninety-five feet instead of one hundred feet in depth. There was no statement or claim in behalf of the vendor that the dimensions,.of the lot known by the street number 1012 Willoughby avenue were ' in fact smaller than the dimensions thereof specified in the contract, either to the extent indicated in the deed or to any extent; nor was there any statement or claim that an actual survey had been made . whereby it appeared that the dimensions had been overestimated, notwithstanding the use of the words “ more or less ” in the agreement, I do not think that the vendee could be required to accept a lot materially less in width and depth than indicated by the figures therein,, unless it was a fact that the premises designated by the street number were smaller in area. In the absence of any evidence to that effect he'could not be compelled to accept a deed which gave him less. A reduction of nine inches in the width and five feet in the depth of a city lot, the purchase price of which was $5,450, would have a very substantial effect upon the value received • by the purchaser, for the difference of a few inches more. or less in the lines within which a city lot is bounded, might cause a difference in pecuniary value exceeding that of acres of farm land.” (Siebel v. Cohen, 22 J. & S. 436.)

The other objection to the title offered by the vendor was well taken. ' It appeared that there was a mortgage of $600 upon the land, payable on demand, which was not mentioned in the contract. If the vendor had then paid this mortgage, or tendered to the vendee an amount" sufficient for its payment, he might have obviated the objection. He did neither, however. The mere' existence on the day when the title is to be closed of an incumbrance on the property to be conveyed, which it is within the power of the vendor to remove, does not constitute a breach of the contract (Higgins v. Eagleton, 155 N. Y. 466), but if the vendee then make a tender and demand of performance, and the vendor fails to remove the incumbrance or provide for its removal to the satisfaction of the vendee, the latter may maintain an action to recover the money paid on the agreement. It is contended on behalf of the appellant that there was no sufficient tender in the present case, but the evidence is otherwise. It distinctly appears that the vendee and his ■counsel told the representative of the vendor that they were present with the purchase price, and said that they tendered it to him and wanted him to give them their papers constituting the title, and furthermore that they had with them in cash the amount of money specified in the contract as then to be paid. No objection whatever was made as to the sufficiency of the tender, and the discussion that ensued related solely to the deficiency in the area of the premises as described in the deed, and to the existence of the $600 mortgage. Under these circumstances it seems to me that the vendor waived the actual production and exhibition of the money.

The proof as to the reasonable value of the services rendered in searching the title was sufficient to sustain the finding of the Municipal Court judge, to the effect that they were worth $100; and the judgment should be affirmed.

All concurred.

Judgment of the Municipal Court affirmed, with costs.  