
    Samuel Samuelson and Nathan Schwartz, Respondents, v. Pincus Glickman, Appellant.
    Second Department,
    June .15, 1906.
    Real property—contract of sale—when vendee not required to accept title to lands subject to party wall.
    When a vendor agrees to convey real estate of dimensions stated “free from all incumbrances except as herein stated,” the vendee is not required to accept premises of the dimensions named, but servient to a party wall, when the only mention thereof in the contract is that the “ vendee has the privilege of a party wall as per agreement now in possession” of parties named, for such provision must be construed not as stating an incumbrance upon the premises, but as giving something in addition.
    Under such circumstances the Vendee may recover a. deposit paid on the purchase price.
    
      It seems, that had the vendee accepted the "deed and entered- into possession, equity would not rescind the contract.
    Appeal by the defendant, Pincns Glickman, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of KingS'on the 22d day of May, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of May, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    
      Leonard Bronner [Joseph J. Myers with him on the brief], for the appellant.
    
      Solomon S. Schwartz, for the respondents.
   Woodward, J.:

- The plaintiffs bring this action to recover $1,000, moneys paid on a contract of purchase of real estate, and for damages for a breach of such contract, claiming that the premises mentioned in the contract were incumbered with an encroachment six inches wide on the westerly wall. The contract of purchase and sale was made in writing, the premises being shown upon a diagram, which pointed out a lot with 100 feet frontage on Pitkin avenue and 150 feet deep. It is conceded on this appeal, as it was upon the trial, that the premises which the defendant was prepared to convey did not extend 100 feet on Pitkin avenue, though it was claimed that there was a party wall upon the westerly line, and that if the premises ran to the middle of this party wall there would be 100 feet of such frontage. The contract," after pointing out the premises as 100 by 150 feet, declared that the vendee has the privilege of a party wall as per agreement now in possession of Title Guarantee and Trust Company.” The defendant urges upon this appeal that, this was sufficient to give the purchasers notice of the incumbrance, and that they must be understood to have purchased subject to the encroachment of this party wall.

It seems clear to us that where the parties enter into an agreement to. sell and' purchase premises 100 by 150 feet, “ free from all incumbrances, except as herein stated,” -the vendor is bound to be prepared to convey the premises according to the terms of the contract, and that the reference to the privilege of a party wall was to be understood, not as an incumbrance upon the premises tb be sold, but something-in addition thereto.' This is the contemplation of parties in a contract of sale, such- as the one here under consideration," from the natural meaning of the language employed. . If the plaintiffs refused to accept the premises with this encroachment of auqaflege.d. party '.Wall, the defendant failed to comply with the conditions of his contract, and. the. plaintiffs had a right to have-their money refunded and to have the damages adjusted, justas has been done in the case now-before us. ■

It is undoubtedly true, if the plaintiffs had accepted the deed tendered by the defendant, and had entered into possession, a court of equity would not permit a rescission of the contract, because there was enough in the contract of sale to give the plaintiffs notice of a party wall in connection with the premises, - and they would be deemed to have accepted the modification; blit in this case the plaintiffs, having found that the premises^ to be conveyed were incumbered by an encroachment of - six inches, refused to complete the purchase, as they had a right to do, and the judgment awarding them the sum of $1,100, or the return of the $1,000 deposit and $100 for the expense of examining title, is supported by the facts, and is in harmony with the law and with the contract existing between the parties. ■ '

We have examined the errors alleged on the part of the defendant, but do not find any which call for a reversal of this judgment.

The judgment and order appealed from should be affirmed, with costs."

Hirschberg, P. J., Gaynor, Rich and Miller, JJ., concurred.

Judgment and order affirmed, with costs.  