
    Patrick J. Reynolds, Appellant, v. Margaret F. Wynne, Respondent.
    Second Department,
    July 23, 1907.
    Real property—vendor and purchaser -r- title unmarketable — encroachment.
    A vendee entitled by his contract to a conveyance of lands of specific-dimensions “free-and clear of incumbrance” is justified in refusing to take title when an adjoining brick building encroaches on the premises three inches at'the street - line and one and one-half inches at the rear, the total encroachment being thirty-six feet in length.
    G-aysor and Woodward, JJ., dissented, with opinion. .
    Appeal by the plaintiff, Patrick J. Beynolds, from a judgment of the Supreme Court iu favor of the defendant,, entered imtlie office of the clerk of thecounty of Kings on the 12th day of January, 1907, upon the decision "of the court .. rendered after .a trial at the Kings County. Special Term.
    
      
      Cyrus V. Washburn [George W. Sickels with him on the brief], for the appellant.
    
      William J. McArthur, for the respondent.
   Rich, J.:

The relief sought in this action was the specific performance of a land contract, with deductions from the purchase price for .alleged violation filed by' the department of health. or if the defendant could not convey a good 'title in accordance with her contract, for judgment for a payment of $100-made upon the contract at the time of its execution and $100 expenses incurred in examination of the title and a survey of the premises.

•The contract provides that- the defendant would convey the premises known as No. 375 Baltic street, Brooklyn^ its'dimensions being 25 by 100 feet, “ free and clear "of incumbrance and violations.” The learned trial justice found, upon undisputed evidence, that on the day fixed for the passing of title the plaintiff informed the defendant that the records of the department of -health of the city of New York disclosed certain violations existing against the' premises and that there were- encroachments thereon, and refused to accept the title tendered on those grounds. He found, however, as matter of law, that such encroachments did not constitute an incumbrance or defect of title and that the contract of sale was not sufficient to cover the violation filed by the department of health, and. that while the reasonable cost and expense of complying with the requirements of such department was $475, refused to make an allowance for the same and directed the delivery of a deed upon payment of the remainder of the full contract price, and that if the plaintiff failed to accept such deed and make such payment on a day specified, his complaint be dismissed.

In the view we take of the case, it is unnecessary to consider the alleged violations or their effect upon the legal lights of the parties. It is undisputed that a . brick building on adjoining property encroaches upon the premises agreed to be conveyed three inches at its front on the street line and one and one-half inches at its rear, a distance from the street of thirty-six feet; that the survey exhibited to defendant upon which plaintiff based, in part,.his refusal to accept the title disclosed this fact. .We think this rendered the . title unmarketable and justified the plaintiff in rejecting the title. (Klim v. Sachs, 102 App. Div. 44.)

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

Jenks and Hooker, JJ., concurred; Gaynor, J., read for affirmance, with whom Woodward, J., concurred.

Gaynor, J.

(dissenting):

■ I think the learned trial judge decided this case with scientific discrimination, and correctly. The complaint prays for specific performance, but that an allowance, or abatement of the- contract price, be made for the small encroachment, and for an alleged health violation. But there was no evidence of the. value of the strip encroached upon, or of the diminution of the value of the lot thereof. The trial judge correctly ruled that in- the absence of such evidence he could not fix any amount in abatement; The other objection to the title was that an anonymous complaint had been. made to the health board that a nasty smell came from a privy vault, and that an exjparte order was made therein by the clerk of the board of health that the vault be emptied and filled, and that a water closet be substituted. The trial judge ruled that the. contract of sale did not cover the so-called health violations, and was in this right. The contract is in so many words merely that the sale shall, be “free and clear of incumbrance and violations”. There is no evidence to show what this obscure word “ violations ” means; nor is there, any evidénce that there was a violation of any health law. The' anonymous, communication was not evidence, nor was the ex jpa/rte order of the health board clerk.

Judgment of specific performance was given, but without any abatement, and I recommend affirmance. The Special Term of the Supreme Court is filled with suits like this, and attorneys who bring them should try them scientifically. Most of them are purely technical and vexatious.

Woodward, J., concurred.

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