
    Thomas P. Graney, Respondent, v. Joseph Berrie, Appellant.
    
      Tenants by the entirety — right of a husband, after his wife’s death, to maintain an action for a violation of a contract to build on the land,.
    
    Where a husband enters into a contract to have a house built on land of which he and his wife are tenants by the entirety, and the wife subsequently dies, the husband is entitled to maintain an action against the contractor for the ■ recovery of money paid under such contract, when it appears that the house as built encroached on an adjoining lot and also on a street. ■
    McLaughlin, J., dissented.
    Appeal by the defendant, Joseph Berrie, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Mew York on the 7th day of March, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of March, 1898, denying the defendant’s motion for a new trial made upon the minutes.
    
      Ilenry A. Forster, for the appellant.
    IF. J. Townsend, for the respondent.
   Ingraham, J.:

The complaint alleges two causes of action, but it is upon the first cause of action that the plaintiff recovered, and that only will be considered. It is there alleged that the plaintiff, being the owner and in possession of a certain lot and parcel of land situate in the city of Mew York, entered into an agreement with the defendant whereby the defendant promised and agreed to erect for the plaintiff upon said lot a certain house or building for the sum of $3,500, which sum the plaintiff promised and agreed to pay therefor; that thereafter the said defendant did erect a certain house or building for which the plaintiff paid the sum of $3,500 as agreed; that the defendant failed and neglected to erect said house or build upon the said lot owned by the plaintiff, as agreed by him, but that the said house or building was by the said defendant located and erected in part upon said lot and in part upon an adjoining lot not owned by the plaintiff, and in part within the street line; and that the owner of the said adjoining lot upon which said building was in part erected by the said defendant, has demanded of the plaintiff that the plaintiff remove the said building or such portion thereof as is located upon his lot, and that by reason of the premises and because of the failure of the defendant to erect said building upon the plaintiff’s lot as by him agreed, the plaintiff has suffered damage in the sum of $1,500. The answer denies that there was any contract between the plaintiff and the defendant, and denies the other allegations in the complaint upon which the cause of action is based. Upon the trial the plaintiff was called as a witness and swore that he was one of the grantees named in a deed of the premises described in the complaint, the other grantee being his wife. 'The deed was introduced in evidence and it appeared that the conveyance was made to the grantees as husband and wife, and thus the title to the premises vested in them as husband and wife, and they thus became seized in fee as tenants by the entirety, and each was seized of the whole and not of any undivided portion of the property. The plaintiff then testified that he had a conversation with the defendant at which the defendant agreed to erect a building upon the said lot for the said sum of $3,500; that the defendant asked the plaintiff for the deed so as to have it for a guide to get his engineer to measure it; that the plaintiff gave him the deed introduced in evidence, and the defendant took it with him and subsequently built the house for which the plaintiff paid him $3,394.

If this contract as testified to by the plaintiff was actually made, the first cause of action alleged in the complaint was proved. The plaintiff, being the owner of the property, made the contract with the defendant to build the house upon the plaintiff’s lot, and gave to the defendant the deed which described the lot upon which defendant undertook to have the property surveyed; and the defendant, under this contract, was bound to build the house upon the lot of the plaintiff as described in the deed, and would be liable for any injury that was sustained by the plaintiff in consequence of a failure to perform such contract. It was then further shown that the house was not built upon the plaintiff’s lot, but as built encroached upon the lot to the south between two and three feet, and encroached upon the street over five feet, and that the expense of moving the house and placing it upon plaintiff’s lot would be in the neighborhood of $1,000.

The defendant denied making any contract with the plaintiff, lie alleged that lie made a contract with the plaintiff’s wife by which the plaintiff’s wife undertook to have the survey made; that a survey was made by an engineer employed in her behalf, whom she paid, and that it was in consequence of an error in this survey that the house was built upon the adjoining property. The court submitted the question to the jury by a charge to which no exception was taken, and in which the court stated to the jury that if they found that the contract was made with the plaintiff and by the plaintiff for his benefit, and that the defendant undertook to locate the premises and made an error in the location, then, and then only, was the plaintiff entitled to damages at their hands. The defendant presented two requests to the court to charge, both of which wu think were properly refused, and the jury, having found for the plaintiff, must be assumed to have adopted the plaintiff’s version of the contract and not the defendant’s. The fact that the title of the property was in the plaintiff and his wife as tenants by the entirety, instead of the plaintiff being the sole owner of the premises, was not a variance that was fatal to a recovery; for the plaintiff, as a matter of fact, was the owner of the property as tenant by the entirety, and upon the death of his wife was the sole owner of the property. The right of the plaintiff to recover depended upon a breach of the contract made with the plaintiff by the defendant, and having given evidence tending to show such contract and the breach by the defendant, the plaintiff is entitled to recover. We think the only question was one of fact, which the verdict of the jury has resolved in favor of the plaintiff, and that no error was committed upon the trial to which an exception was taken.

The judgment appealed from is affirmed, with costs.

Van Brunt, P. J., Patterson and O’Brien, JJ., concurred; McLaughlin, J., dissented.

Judgment affirmed, with costs.  