
    Martin Schaefer, Appellant, v. John H. Hilliker and Mary E. Hilliker, Respondents.
    Second Department,
    October 7, 1910.
    Real property — vendor and purchaser — recovery of purchase money — agreement to convey lands not owned by vendor.
    A vendee of lands is entitled to recover the earnest money paid when it appears that the title to an old Dutch road which formerly crossed the premises is in a city and is not covered by conveyances to the vendors, even though the road has been abandoned and closed.
    Under a complaint alleging that the title to the road is not in the vendors but in the city, the vendee may show that the vendors never received title thereto from their predecessors.
    A title is unmarketable where the vendor contracts to sell lands not owned by him.
    Appeal by the plaintiff, Martin Schaefer, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Kings on the 23d day of September, 1909, upon the decision of the court, rendered after a trial at the Kings County Trial Term, the jury having been discharged, dismissing the complaint upon the merits.
    
      George L. Stamm, for the appellant.
    
      John J. A. Rogers [John H. Steenwerth with him on the brief], for the respondents.
   Thomas, J.:

Plaintiff refused to take title to land upon the ground that it was crossed by an old road of which the defendants had not, and the city of New York had, title. In this action to recover the deposit and expenses, the complaint alleges that the defendants, or any of their predecessors in title, did not have title in any part of the land included in the road, which was a Dutch road, identified as the Newtown and Bush wick turnpike road, and that the same was owned by the city of New York. The defendants deny. The plaintiff contends that he has proven the above allegations, and, alternatively, that if any of defendants’ predecessors did have title he did not convey the same. The earliest deed shown in defendants’ chain of title is' dated in 1861, and is from Meserole and others, widow and heirs of Nicholas N. "Wyckoff, to ' Iiolide. The description is : “ Beginning at a point on the northwesterly side of Brooklyn and Newtown Turnpike, distant 478 feet 1-ij,- inches, S. W. Measured on N. W. line bf said Turnpike, as the same runs from the southerly side of Cypress Hill Plank Road; running thence N. 63d. 47m. West along land lately sold by parties of first part to John Trummer 267 feet 6 in.; thence S. 5d. 15M/West, 132 ft. 8 in.; thence south 63d. 47M. East, 193 feet to the northwest side of the Brooklyn & Newtown Turnpike; thence N. 31 d. 39 min. E. along the northwest side of said Turnpike 67 Ft. 10J inches; thence north 26d. 13min. east along the N. W. side of said Turnpike 46 Ft. 4|- inches, to the point or place of beginning.” This description excludes the highway. Several deeds of the land thereafter followed that description without change, until upon a foreclosure sale in 1877 the.referee’s deed conveyed the premises in the form of fifty lots, “ as laid down on a certain map entitled 6 Map of property situate in the Eighteenth Ward of the City of Brooklyn, belonging to Mary Darling, John L. Nostrand, City Surveyor,’ ” and the description, entirely changed in form, excludes the Busliwick and Newtown turnpike road by carrying the line along the northwesterly side of it, but the deed specifically conveys such interest as the grantor has in. the road. In 1872, Flushing avenue and Jefferson street had been laid out, the former through the premises and the latter northeasterly thereof, and intersecting the old road. Dow-ling, the purchaser at the foreclosure sale, boldly appropriated so much of the old road as enabled him to bound lots sold by him on Jefferson street, and by such boundary the conveyance was finally made to the defendants. In this wray Dowling took possession of a triangular piece of land that, as alleged, was a part of the Newtown and Busliwick road. But how is it shown that this triangle (1) was not owned and conveyed by Meserole and others, Wyckoff’s heirs; (2) that it was a part of the Newtown and Bnshwick turnpike? The map of the estate of Nicholas Wyckoff, from the files of the register of Kings county, marked “ Map of Land belonging to Est. of Nicholas Wyckoff, filed Mar. 14, 1848, surveyed by Benj. F. Willets Feb. 1848,” shows the “Newtown and Busliwick Road and Turnpike” running through the Wyckoff lands, and the Johnson map of 1874 shows the road running through the particular part of the land in question. Then there is the map of Mary Darling, who, in 1868, bought all the land by the description first given, whereon the land is laid out in lots, and shows “ Old Bead ” running across the southeast corner of the defendants’ land. Then there is the evidence of Bartlett, who testifies from actual knowledge of the locality, and who, in addition, has plotted the laud from deeds and maps, and who remembers the road. Then there is the opening map of Flushing avenue, showing the Brooklyn and ISTewtown turnpike passing through the corner of the block. Finally, the witness Schumacher knew the “road called the Turnpike, running from Brooklyn to ISTewtown” and “travelled on it over the premises affected by this controversy, and Flushing Avenue was unknown at that time.” The testimony of Stebbins gathers earlier existing facts relating to the locality, and shows that there was but one road and that it was of Dutch origin, and this accords with the decision of this court in Caminez v. Goodman (119 App. Div. 484), that the Brooklyn and Newtown road was a Dutch road, the title whereof vested in the city. Hence it is immaterial, as regards defendants’ title, whether the road has been abandoned or closed. The defendants have not the title to the land in the road, and the city has such title, and the complaint so specifically alleges. This allegation permitted plaintiff to show that defendants never received such title from their predecessors in title. If Wyckoff had title to any part of the road, his heirs kept it and have it, as the evidence shows that they have made no conveyance, real or attempted, of it.

The title is not marketable, by reason of the fact that the defendants have contracted to sell what they do not own.

The judgment should be reversed and a new trial granted, costs to abide the event.

Woodward, Jenks, Burr and Carr, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.  