
    Adolph Green, Respondent, v. John R. Martinez Hernz, as Executor and Trustee, etc., of Ramon Martinez Hernandez, Deceased, and Horace Anderson, as Trustee of Ramon Martinez Hernandez, Deceased, Appellants.
    
      Vendor and purchaser— an unredeemed tax sale is an incumbrance on the title, justifying the purchasers refusal to accept it.
    
    In an action brought to recover damages for the breach of a contract for the sale of real estate, it appeared that the defendant agreed to sell certain property to the plaintiff; that when the matter was to be closed the plaintiff objected to taking the title upon the ground that the property had been sold for taxes, and had not been redeemed therefrom. The defendant did not offer to do anything in the matter, but told the plaintiff that if he wanted to get his rights he could sue for them.
    
      Held, that the unredeemed tax sale constituted an incumbrance upon the property, which justified the plaintiff in refusing to complete the' contract, and entitled him to recover a cash payment which he had made, and also his expenses incurred in examining the title.
    Appeal by the defendants, John R. Martinez Hernz, as executor and trustee, etc., of Ramon Martinez Hernandez, deceased, and another, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 25th day of November, 1895, upon the decision of the court, rendered after a trial at an equity term thereof.
    The action was brought to recover damages for the breach of a •contract for the sale of certain real estate. After the action was commenced the defendant Hernz was removed from his position as •executor and trustee of the said Ramon Martinez Hernandez, and "the defendant Anderson appointed in his stead, and thereafter, on the plaintiff’s motion, the said Anderson was brought in as a party •defendant to the action.
    The contract was made April 28, 1892, for the sale of the property by the defendant Hernz to plaintiff for the consideration of $9,300 to be paid, $300 cash upon the execution of the contract, and $6,000 by a bond and mortgage, and $3,000 cash at the time of the ■delivery of the deed, May 16,1892. .The contract provided that on receiving such payment and bond and mortgage^ the said defendant, should give the proper executor’s deed.
    At the time the contract was executed the plaintiff paid $300 in cash. The plaintiff caused the title of the property to be examined, and necessarily expended for that purpose $250. The time for the payment of the $3,000, and delivery of the bond and mortgage and deed, was extended by agreement of the parties until May 26, 1892..
    - On this latter day the parties' met and the plaintiff objected to, taking the title' upon the ground, among others, that there was a. tax sale upon the property which was unredeemed. There was not. then, or at any other time,, anything said by the said defendant, or any offer made to Mm, to redeem the property from the tax sale, but he-told the plaintiff that if he wanted to get his rights he c®uld sue for them, -and that that was all he could do. The plaintiff thereupon demanded the repayment of the $300 paid to him under the contract, and the $250 expenses incurred in examimng the title, which was refused. The plaintiff was at that time able to perform the. contract on his part.
    "Upon the trial it appeared that this property was sold in 1886 for-the taxes of 1882; that upon_that sale the city of New York became, the purchaser, and that the property was not redeemed from sucM sale until February 16, 1893, this. action having been commenced, in August, 1892.
    .Upon this evidence the court ordered judgment for the plaintiff" for the $300 and the $250, on the ground that Hernz was not on. May 26, 1892, the owner in fee -of the property, free. from all. - incumbrances, by reason of the unredeemed tax sale.
    
      'Ambrose G. Todd, for the appellants.
    
      Henry. M. Goldfogle, for the respondent.
   Williams, J.:

There can be no doubt but that a sale of property for unpaid' taxes which remains unredeemed would constitute an incumbranceon the property. It is claimed that there was no proof given on the, trial of unpaid taxes and a sale of the property therefor. These, facts were proved by paroi without the production of any documentary evidence, but there was no. objection off any kind, made to> the proof given. If there had been the plaintiff, might have met such objection by producing such documentary evidence. The defendants should not be permitted to claim now that these facts were not sufficiently established. ' Moreover,' it appears that there was a redemption from this tax sale, after the action was commencéd, by the payment' of tlie taxes and such other amount as was-necessary to effect such redemption. There can he no doubt but that such unpaid taxes, and the sale of the property therefor, constituted at least an incumbrance upon the property.

The title offered to the plaintiff was, therefore, not free from incumbrance, and the plaintiff could not be required to pay the balance of the purchase money and deliver his bond and mortgage and accept the deed until such incumbrance had been extinguished or removed. This incumbrance was distinctly pointed out at the time the contract was to be consummated, and the defendant Hernz instead of removing the same, or offering to do so, practically refused to remove it by telling ,the. plaintiff that if he wanted to get his rights, he should sue for them ; that that was’ all he could do.

Under these circumstances, we are unable to see how the plaintiff could be required to do anything himself to remove the incumbrance. ■ If any suggestion had been made by* the defendant Hernz. that the plaintiff should do this, and should use a part of the purchase money remaining unpaid for that purpose, it might then be claimed that he was under obligation to do so, or to furnish mo'ney sufficient to make the redemption, but no such condition of things was presented, and the plaintiff could only decline to carry out the contract because ’ of this incumbrance, or take the title subject to the incumbrance, pay the whole balance of the purchase price to Hernz, and remove the incumbrance at his own expense. He had, under these circumstances, a legal right to refuse to' consummate the contract, and was entitled to sue for and recover back the part of the purchase money already paid, and the expense of examining the title.

Our conclusion, therefore, is that the Case was properly decided by the trial court and that the judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.  