
    The Broadway Realty Company, Plaintiff, v. Lawyers’ Title Insurance and Trust Company and United States Mortgage and Trust Company, as Trustee under the Mortgage of The Broadway Realty Company, Dated July 25, 1896, Defendants.
    (Supreme Court; New York Trial Term,
    June, 1915.)
    Title — provisions of policy insuring against unmarketability of title — action on policy of insurance — when unmarketable.
    A policy insured against the unmarketability of the title to a plot of land therein described by metes and bounds “ and also the building now being erected on said premises.” The policy further provided that “ The land, the title to which is hereby intended to be insured, being that on which said building now stands as shown on the survey * * * a duplicate of which survey is hereto annexed.” The survey mentioned showed no encroachment on the street but the building at the time the policy of insurance took effect did so encroach to such an extent that the actual agreed cost of removing the encroachment was in excess of $16,000. Held, that the title was unmarketable and that a motion to set aside a verdict in favor of plaintiff in an action on the policy will be denied.
    Motion to set aside verdict.
    Masten & Nichols (Frederick Moses and H. Bartow Farr, of counsel), for plaintiff.
    Dean, Tracy & McBarron (D. B. Odgen, of counsel), for defendant Lawyers’ Title Insurance and Trust Company.
    Krauthoff, Harmon & Mathewson, for United States Mortgage and Trust Company.
   Ford, J.

No question is presented upon this motion, except the construction of an insurance policy, which is in the customary unilateral form. It follows- that the usual rule applies requiring, in case of doubtful meaning of the language employed, that the construction the more favorable to the assured must be adopted. The policy insures against the unmarketability of the title to the plot of land therein described by metes and bounds, “ and also the building now being erected on said premises known as the Bowling Green Offices.” The next paragraph of the policy adds: ‘ ‘ The land, the title to which is hereby intended to be insured, being that on which said building now stands as shown on the survey of Francis W. Ford, dated February 27, 1897, a duplicate of which survey is hereto annexed.” The survey mentioned shows no encroachment on Broadway. The building as erected at the time the policy took effect did so encroach to such extent that the actual agreed cost of removing the encroachments was $16,794 35.- This in my opinion rendered the title unmarketable. Acme Realty Co. v. Schinash, 154 App. Div. 397. It would seem to be the fair intendment of the two clauses quoted from the policy, when taken together and force and effect given to both, to insure against unmarketability arising from the encroachments. 'The motion to set aside the verdict will be denied.

Motion denied.  