
    William J. Nicklas, Respondent, v. George Keller, Appellant.
    
      Specific performance — an arbitrary refusal to perform, not sustained by the existence of mortgages of which unrecor'ded discharges arre tendered — the burden rests on the defendant to show defects easement of passage over part of the lot rights: in a public highway and a private easement of passage, distinguished.
    
    
      Semble, that where mortgages exist upon one piece of real property contracted to be exchanged for another, and the owner of the.former piece, at the time specified for the exchange, produces .satisfaction pieces thereof and offers to pay the cost of recording them, the other party is not at liberty to arbitrarily refuse to complete the exchange without giving any reason for such refusal.
    In such a case a court of equity will, after such mortgages have been actually discharged of record, give judgment for specific performance.
    Where it is assumed, on the trial of an action for specific performance of a contract for exchange of real property, that the plaintiff entered into possession of his property under a deed thereof produced by him, although there is no sufficient evidence to establish that fact, the burden of showing a defect of title rests upon the defendant.
    In such a case, however, specific performance will not be decreed where the plaintiff’s title is derived through conveyance from the owners of a plot of ground laid out by them on a map into lots with streets delineated thereon, and where thereafter, by commissioners authorized by statute to lay out public streets in the locality in question, a map is filed and monuments are established by which it appears (accordingly as the map or monuments are regarded as con- " trolling) either that there is a deficiency of a foot of frontage in the lot in question, or that there is the full frontage, but in the latter case that to the extent of one foot thereof it is subject to the rights of' the other grantees of the common predecessors in title, by whom the lots and streets were plotted and laid out, to an easement of passage over it.
    The rule that, when a public highway is closed by proper authority, the. abutting . owners do not continue to possess a private easement of passage over the land, theretofore used as a highway, has no application to a case in which owners of lots, abutting upon a piece of land delineated as a street upon a map made by the owner by whom all the lots were sold, acquire by reason of such map and the conveyance to them an easement or right of way over the land so delineated as a street.
    Appeal by the defendant, George Keller, from a judgment of the Supreme Court' in favor of the .plaintiff, entered in the office of the clerk of the county of Westchester on the 21st day of February, 1896, upon the decision of the court rendered after a trial at the Westchester Special Term.
    
      
      Milo J. White, for the appellant.
    
      Austin P. Pressinger, for the respondent.
   Cullen, J.:

This action is brought to compel the specific performance of a contract between the parties, for an exchange of real properties. The plaintiff attended at the place prescribed by the contract for passing the title, and tendered a conveyance of his property and of the money, which by the contract he stipulated to pay. The defendant declined to carry out the contract or deliver to the plaintiff a deed of his (defendant’s) property. Ho reason was assigned by the defendant for the refusal. At the time at which title was to be taken there were certain mortgages on the plaintiff’s property, in addition to the one subject to which, by the terms of the contract, the defendant ' was to take the property. These mortgages were presently payable, and the plaintiff, at the time prescribed for performance of the contract, tendered, with his deed, proper satisfaction pieces and offered to pay for recording them. These mortgages have since been satisfied of record. After the refusal of the defendant, the plaintiff instituted this action, alleging his ability and desire to perform the contract, and the ability of the defendant to comply with it, and prayed judgment for its specific performance. The defendant answered denying plaintiff’s ability to convey a good title, and especially set forth the incumbrance of the mortgages before mentioned. He also counterclaimed for his expenses for the examination of the title and for the' services of his broker in negotiating the exchange. The Special Term held plaintiff’s title good, and decreed that the defendant specifically perform the contrae#; for exchange; or, in default of such performance, that the plaintiff be awarded damages.

We think that the existence of the mortgages on the plaintiff’s property, unsatisfied of record, did not place the plaintiff in any default. Conceding it was the duty of the plaintiff to see that the mortgages were properly discharged of record, and that he could not impose that burden on the defendant, still it was a duty which at the time the plaintiff was entirely able to perform. The. refusal of the defendant to take title was arbitrary and no reason assigned therefor. Had the defendant given the existence of the mortgages as the reason for his refusal to take title, the plaintiff could at once have proceeded to have the mortgages satisfied of record. As the defendant assigned no such ground for his conduct, but absolutely refused to Carry out the contract, we think it was not necessary for the plaintiff to satisfy the mortgages at the time. However this may be, and assuming that plaintiff was in default, the mortgages have ' been since satisfied of record, and it was entirely within the power of a court of equity to relieve him from that default. (Haffey v. Lynch, 143 N. Y. 241; Day v. Hunt, 112 id. 191.)

Rut there was one objection to the plaintiff’s title proved on the •trial, which, though discovered after the defendant had refused! to perform his contract and now' urged solely to relieve him of its obligations,, is in our opinion valid, and must prevent a recovery by the plaintiff. The premises contracted to be conveyed by the plaintiff were a plot at the southwesterly corner of Cortlandt avenue and One Hundred and Forty-eighth street in the city of Hew York, twenty-seven feet and five inches in front on Cortlandt avenue, by ninety-four feet in depth on One Hundred and Forty-eighth street. The plaintiff placed in evidence a deed to hiinself from Anna T. Dale and James S. Dale, dated April 16,1894, conveying these prerm . ises by proper description. The defendant now objects that there was no sufficient evidence given to show that the plaintiff ever-entered into possession of the premises under that deed. It may be that this' contention is correct. If such be the case the plaintiff would have failed to prove a.prima facie title. But it appears from the whole case, which seems to have been rather loosely tried, that the possession of the plaintiff was assmned by both sides. On this assumption and proof of the plaintiff’s deed it was incumbent oh the defendant to show that there was a defect in the title (Forbes v. Halsey, 26 N. Y. 53 ; Moser v. Cochrane, 107 id. 35; Greenblatt v. Herman, 144 id. 13.)

The evidence for the defendant -showed that the property of the plaintiff was part of a large tract of land in the then town of Morrisania, owned by Gerard W. Morris, and laid out into lots, streets and avenues by him, upon a map made in 1853. The streets and avenues seem not to have been public highways, and came into being solely by the act of the owner in laying them out and selling lots fronting upon them. The first deed in the chain of plaintiff’s title was from Morris to one Klingelhofer. This deed conveyed, three lots fronting on Mott street as laid down on the Morris map. The description ran along the southerly side of Mott street and did not include any part of the land lying within that street. By chap.ter 841 of the Laws of 1868, commissioners were appointed to lay out streets, roads and avenues in the town of Morrisania and, to that end, to adopt or reject such highways or streets as might then be actually laid out and open or in use as public streets. Under-this statute, in February, 1871, the commissioners filed a map by which it appears that Mott street was retained on the plan adopted by them under the name of One Hundred and Forty-eighth street. But while, so far as we can gather from the map filed, the lines of old Mott street and the present One Hundred and Forty-eighth street are identical, it seems by the evidence of the surveyors who-located the street lines from monuments established by the commissioners, that the actual location of One Hundred and Forty-eighth street is one foot to the north of the lines of Mott street. It is not necessary for us to determine whether the map filed by the commissioners should, in law, control the location of the monuments. The premises of the plaintiff, as occupied by the building thereon,, concededly are but twenty-six feet five inches in front. If the location of Mott street -controls, then the premises are a foot, deficient in front, because the distance from the center of the party wall to-the south line of Mott street is but twenty-six feet five inches, the space occupied by the house. If, however, the actual location of One Hundred and Forty-eighth street, determined by the commissioners’ monuments, is to control, then there is a distance of twenty-seven feet five inches between the southerly line of plaintiff’s premises and the southerly line of One Hundred and Forty-eighth street. This is the full distance called for by the contract. The plaintiff sought to establish title to the additional one foot which formerly lay in Mott street by a conveyance from the heirs of Morris to his grantor, Anna T. Dale. This chain of title is criticised, on the ground that who were the heirs of Morris was not sufficiently proven. We think that presumptively the conveyance was sufficient, and, under the rule of law already cited, it was incumbent on the defendant to point out title in any other parties. But though the title to this strip a foot wide is thus shown in the plaintiff, It appears to be incumbered with an easement in favor of the owners of other lots fronting on the street. The plaintiff contends that by the ¡action of the commissioners in rejecting this strip of Mott street from the limits of One Hundred and Forty-eighth street, the title to the strip reverted unincumbered to the owners of the soil. We think this position cannot be sustained. In the case of a public highway it is doubtless true that when the highway is closed by proper authority the abutting owners do not continue to possess a private easement over the highway as a right of way. It was so held in Wheeler v. Clark (58 N. Y. 267) and in Kings County Fire Insurance Company v. Stevens (101 id. 411). But the present case differs from those cited, The rights of the purchasers of lots fronting on Mott street were not the rights that abutters have in a public highway, but private easements-, created by laying out the street and by the sale of lots thereon. In Haight v. Littlefield (147 N. Y. 338) the owner of a plot of land laid out thereon a street running from the public street or highway to a railroad. Lots were sold bounded by the street. It was held that such conveyances, with the map, secured to the grantee an easement or right of way in the strip of land delineated as a street-; that, whether it was á public street or not, the grantee acquired the right to insist that at all times the way be kept open and unobstructed for the benefit of his premises; that, irrespective of the rights of the public in a public street, the owners of -lots hounded upon a street have under such circumstances a right of way as between themselves and their -grantor, This easement ' could only - be extinguished by releases from the owners of adjacent property, or by proof that such owners had abandoned it by building out or inclosing their lots to the new line. (Welsh v. Taylor, 134 N. Y. 450.)

The case is barren of any proof in this respect. It seems to us, therefore, that either the plaintiff has a lot only twenty-six feet five inches in front, or, if his lot be twenty-seven feet five inches, then that as to' one foot of that frontage it is, on the proof in this-case,, subject to such an easement in favor of the adjacent abutters as would deprive a purchaser of any beneficial use. This deficiency of one foot we regard as too substantial to be overlooked.

It may be that on another trial plaintiff can show that the property owners on the street have gone out to the new line. In that case, in our judgment, his title is good. But if the plaintiff should be unable to adduce such proof it is still plain that the defendant originally repudiated his contract, not on the ground of this defect of title, hut solely because he repented his bargain. He was neither ready nor willing to perform. He is, therefore, not entitled to damages nor should the plaintiff be mulcted in costs.

The plaintiff, at his election, may either take a new trial, the costs to abide event, or an order reversing the judgment and dismissing the complaint, without costs.

All concurred.

Judgment reversed and complaint dismissed, without costs, unless plaintiff stipulates within twenty days to take a new trial, in which case a new trial will be ordered, costs to abide the event.  